STATE OF NEW YORK
SUPREME COURT: COUNTY OF CHAUTAUQUA
DAVID CUMMINGS and
vs Index #H-04196
JAMES E. WESTMAN
JOHN LLOYD EGAN & ASSOCIATES
(John J. Egan, Jr, Esq.
of Counsel) for Plaintiff
WAGNER & HART
(Edward J. Wagner, Esq.
of Counsel) for Defendant
DECISION and ORDER
This is plaintiff's second attempt to amend the ad
damnum clause of the complaint from a return of the
property to a claim of $1.5 million.
The Court denied, without prejudice, the first attempt
failed for two reasons:
1. There was no strong affidavit of merits by someone
with first hand knowledge. An attorneys affidavit is not
sufficient to establish damages in an action of this type.
See SIEGEL, NEW YORK PRACTICE, Section 237, page 355.
There should be an affidavit of an expert that would
justify the ad damnum sought.
2. There was no appearance on the motion by counsel
This case has been languishing in virtual limbo during
most of its existence. It hardly instills confidence in the
legal system and is the type of example that inspires
reformers to over react to improve the system. (See the
current Matrimonial Rules).
The motion is denied, without prejudice, on the
following conditions and scheduling order:
Plaintiff to provide the Court and defendant with an
affidavit of merit to justify an appropriate amendment to
the complaint, including affidavit(s) to establish value
and damages, by November 15, 1995.
Counsel are to appear for a preliminary conference at
1:30 p.m. on November 20, 1995, to establish the proper ad
damnum amendment to be ordered by the Court, and to show
cause why the following scheduling order should not be
Demand for bill of particulars by December 15, 1995
Service of Bill of Particulars by January 10, 1996
Schedule for completion by March 1, 1996 of
examinations before trial that will identify witnesses
and dates for examination.
Completion of all other discovery by April 30, 1996
Expert disclosure by plaintiff, 60 days before trial
and by defendant, 45 days before trial.
Plaintiff to file note of issue no later than May 15,
THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER
ORDER SHALL BE NECESSARY.
Dated: October , 1995
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1995, and
duly entered in the office of the Clerk of the County of
Chautauqua on the same date.