# Vastola v. Maer

> Appellate Division of the Supreme Court of the State of New York · July 14, 1975 · 48 A.D.2d 561

URL: https://www.frixlaw.com/law-library/cases/5797767

## Case

- **Full name:** James Vastola, Individually and as Administrator of the Estate of James Vastola, III v. Richard Maer
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 14, 1975
- **Citations:** 48 A.D.2d 561; 370 N.Y.S.2d 955; 1975 N.Y. App. Div. LEXIS 9940
- **Precedential status:** Published
- **Opinion:** Dissent by Martuscello
- **Judges:** Martuscello, Rabin
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Martuscello, J. (dissenting).
An action for personal injuries on behalf of James Vastóla III, and by his father, James Vastóla, for medical expenses and property damage, arising out of an automobile accident, was originally brought in the Civil Court of the City of New York, Richmond County. Almost two years after James Vastóla Ill’s death from leukemia, his father, as administrator, moved in the Supreme Court to have the action removed to that court, to amend the complaint to add an action for wrongful death, and to increase the ad damnum clause. In support of the motion an affidavit by the father was submitted which merely referred, for the ñrst time, to the son’s alleged exposure to gasoline following the accident. Also submitted in support of the motion was an affidavit of a medical expert which stated that with a reasonable degree of medical certainty the boy’s death from leukemia was causally related to his exposure to gasoline following the accident. Despite vigorous opposition from the appellants Special Term granted the motion.
While I am mindful of the fact that leave to amend should be freely given . (CPLR 3025, subd [b]), I feel that the papers submitted in support of this belatedly asserted motion were insufficient, as a matter of law, in that they failed to establish to any degree the fact of the decedent’s exposure to gasoline following the accident (cf. East Asiatic Co. v Corash, 34 AD2d 432 ). The affidavits submitted in support of the motion are simply devoid of facts that would lead one to that conclusion. For this reason, the order should be reversed and the motion should be denied.
Cohalan and Brennan, JJ., concur with Rabin, Acting P. J.; Martuscello, J., dissents and votes to reverse and deny the motion in an opinion, in which Munder, J., concurs.
Order of the Supreme Court, Richmond County, dated September 5, 1974, affirmed, with $20 costs and disbursements jointly against appellants appearing separately and filing separate briefs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5797767. Public record. Not legal advice.