Rosini v. Cunanan

Order insofar as appealed from unanimously modified, on the law, and as modified, affirmed, without costs, in accordance with the following memorandum: In this medical malpractice. action, defendant Cunanan appeals from that part of an order at Special Term which denied his motion to strike certain allegations from plaintiff’s bill of particulars on the ground that plaintiff may not recover for her sterility because the damages are too speculative to be compensable. The court properly denied the motion to strike the allegations of plaintiff’s sterility because the admissibility of proof of damages is for the trial court to decide, not Special Term (see, Nordhauser v New York City Health & Hosps. Corp., 102 AD2d 818; Ivey v New York Tel. Co., 279 App Div 972, 973). It was error, however, for Special Term to recast plaintiff’s bill of particulars. It is not the court’s function "to reframe demands and undertake successive prunings until an acceptable product shall emerge” (Naglak v Dairy Treat Corp., 22 AD2d 716). That portion of the order which sought to modify paragraph 16 is therefore stricken and the original paragraph reinstated. (Appeal from order of Supreme Court, Erie County, Gossel, J.—preclusion of evidence.) Present— [957] Denman, J. P., Boomer, Pine, Lawton and Davis, JJ. [See, 132 Mise 2d 246.]