(Download) "Henry N. Budoff v. Claire Kessler" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Henry N. Budoff v. Claire Kessler
- Author : Supreme Court of New York
- Release Date : January 09, 1956
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
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[2 A.D.2d 760 Page 760] Appeal from an order denying appellant's motion for leave to serve a second amended complaint. In this action by a former
patient against the respondent, a dentist, and against the estate of another dentist, the original complaint stated two causes
of action, each demanding $10,000 damages. That complaint was dismissed as against respondent on the ground that both causes
were barred by the two-year Statute of Limitations applicable to malpractice actions, with leave to plead a proper cause of
action for breach of contract (Budoff v. Kessler, 284 App. Div. 1049). Pursuant to such leave, an amended complaint was served
containing one cause of action, purporting to be in contract and demanding $3,100 damages. A defense of the two-year Statute
of Limitations applicable to malpractice actions was pleaded in respondent's answer and appellant's motion to strike out such
defense was denied. Appellant moved for leave to serve a second amended complaint on the ground that the proposed pleading
had expunged the questionable matter and sounded solely in contract. The motion was denied on the ground that the amended
complaint sounded in tort, and the appeal is from the order denying such motion. Order reversed, without costs, and motion
granted, without costs; the second amended complaint to be served within 10 days after the entry of the order hereon. We do
not pass on whether the first amended complaint was based on breach of contract. The proposed second amended complaint contains
no allegations as to pain and suffering sustained by the appellant or as to negligence on the part of respondent and defendant
and demands damages, limited to $1,400. So far as the Statute of Limitations is concerned, the proposed second amended complaint
is based on breach of contract and does not seek to recover damages for malpractice (Conklin v. Draper, 229 App. Div. 227,
affd. 254 N. Y. 620; cf. Hurlburt v. Gillett, 96 Misc. 585, affd. 176 App. Div. 893; Horowitz v. Bogart, 218 App. Div. 158).
 "Henry N. Budoff v. Claire Kessler" by Supreme Court of New York # Book PDF Kindle ePub Free){kind=link}