Ardelean v Affuso

[*1] Ardelean v Affuso 2012 NY Slip Op 22042 Decided on February 24, 2012 Supreme Court, Queens County Siegal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 24, 2012
Supreme Court, Queens County

Micheal Ardelean, Plaintiff,

against

Susan S. Affuso and Benjamin P. Affuso, Defendants.



25197/10



Plaintiff

Robert Mijuca, Esq.

Rubenstein & Rynecki, Esqs.

16 Court St.

Brooklyn, NY 11241

Defendants

Brian Murray, Esq.

Mendolia & Stenz

875 Merrick Ave.

Westbury, NY 11590

Bernice Daun Siegal, J.

Defendant moves for an order compelling plaintiff to produce a supplemental demand setting forth the total damages to which the plaintiff deems themselves entitled. CPLR §3017(c) prohibits, in both an action for personal injury and wrongful death, the plaintiff from specifying a money figure [*2]in the pleadings unless the "party against whom an action to recover damages for personal injuries... request[s] a supplemental demand setting forth the total damages to which the pleader deems himself entitled. A supplemental demand shall be provided by the party bringing the action within fifteen days of the request. In the event the supplemental demand is not served within fifteen days, the court, on motion, may order that it be served."

Plaintiff, in opposition, attaches its response to defendant's request wherein plaintiff states that "[a] jury will decide the total damages to which the Plaintiff is entitled to at the time of trial."

Plaintiff's response to defendant's request is insufficient to meet its burden. As an initial matter, the court notes that prior to the passage of CPLR § 3017 ( c ), money demands were required as part of the ad damnum clause of a pleading. The abandonment of the requirement for specificity in the initiatory pleading was in response to "inflated demands [which] led to local publicity damaging the physician's reputation, although the case could prove wholly baseless." (Siegel, NY Prac § @372 [5th ed].) All that is required (and permitted) is a statement that the amount sought exceeds the jurisdiction of the lower courts. (Id.) Critically, a specific figure may in fact be required but may only be specified upon motion as provided for in CPLR § 3017. ( See Moltner v. Starbucks Coffee Co., 2009 WL 510879 [S.D.NY,2009][holding that a demand made pursuant to CPLR §3017(c) may be used to determine the amount in controversy for removal to federal court].) While no such exigency applies to the matter herein, the plain language of the statute requires that plaintiff provide a specific sum when met with a demand from defendant.

For the reasons set forth above, defendant's motion seeking an order pursuant to CPLR §3017(c) compelling the plaintiff to supply a supplemental demand setting forth the total damages to which plaintiff deems itself entitled is granted.

It is hereby Ordered that defendant is to serve a copy of this Order on the plaintiff with notice of entry; and it is hereby

Ordered that plaintiff is to provide the supplemental demand within fifteen days of receipt of the within Order.

Dated: February 24 , 2012___________________________

Bernice D. Siegal, J. S. C.