Matter of Sealy v Morris

Matter of Matter of Sealy v Morris 2012 NY Slip Op 07116 Decided on October 24, 2012 Appellate Division, Second Department 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 Official Reports.

Decided on October 24, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2011-09276
(Index No. 8734/11)

[*1]In the Matter of Janet Sealy, appellant,

v

Kieran C. Morris, et al., respondents.




Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum], of
counsel), for respondents.


DECISION & ORDER

In a proceeding pursuant to CPLR 325 to remove an action to recover damages for personal injuries entitled Sealy v Morris, pending in the Civil Court, Queens County, under Index No. 0140867/04, to the Supreme Court, Queens County, and for leave to amend the complaint to increase the ad damnum clause, the petitioner appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), entered September 2, 2011, which denied the petition.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the petition to remove the petitioner's underlying personal injury action from the Civil Court, Queens County, to the Supreme Court, Queens County (see CPLR 325[b]), and for leave to amend the complaint to increase the ad damnum clause (see CPLR 3025[b]). To demonstrate her entitlement to this relief, the petitioner was required, inter alia, to submit a physician's affirmation (1) showing a causal connection between her condition and the accident, and (2) specifying the claimed change in her condition, any injuries that had not been previously considered, or the extent to which the condition had worsened (see Cohen v Kim, 23 AD3d 602; Joefield v New York City Tr. Auth., 11 AD3d 586; Dolan v Garden City Union Free School Dist., 113 AD2d 781, 785; London v Moore, 32 AD2d 543). The physician's affirmation submitted by the petitioner in support of her petition failed, inter alia, to establish that the increased injuries to her lower back which required surgery were causally related to the subject motor vehicle accident, as it failed to account for the fact that the petitioner had claimed to have injured her lower back in accidents that had occurred both prior and subsequent to the subject motor vehicle accident (see Bell v Margolis, 82 AD2d 817; Northern Ins. Co. of N.Y. v Kregsman, 26 AD2d 648).
DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court