In the Matter of Vincent Capicotti, Respondent, v. Benjamin Capicotti, Appellant

In the Matter of Vincent Capicotti, Respondent, v. Benjamin Capicotti, Appellant. [MAJORITY] In a proceeding by the plaintiff in a negligence action pending in the City Court of the City of White Plains, to remove the action to the Supreme Court and to serve an amended complaint increasing the damages claimed, the defendant in said action appeals from an order of the Supreme Court, Westchester County, dated January 16, 1963, which granted the petitioner’s application. Order reversed, on the facts and in the exercise of discretion, without costs; and application denied. In our opinion, the combination of the petitioner’s unreasonable delay in bringing this removal proceeding after full knowledge of the alleged extent of his injuries, and the petitioner’s failure to connect or relate the alleged loss of employment to the alleged injuries, precluded the granting of the instant application. Moreover, the injuries set forth in petitioner’s bill of particulars as plaintiff, dated November 12, 1960, are substantially the same as those set forth in the medical affidavit submitted in support of the instant application; such injuries fail to support the conclusion that inadequate damages might he available in the court of original jurisdiction. Beldoek, P. J., Hill and Rabin, JJ., concur; Christ and Brennan, JJ., dissent and vote to affirm the order on the ground that, under all the circumstances disclosed by this record, the Justice at Special Term properly exercised his discretion.