STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

______________________________


DAVID CUMMINGS and

DONNA KELLY

Plaintiff,

vs Index #H-04196


JAMES E. WESTMAN


Defendant.

______________________________



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



GERACE, J.


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


for plaintiff.


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


imposed:


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,


1996.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER


ORDER SHALL BE NECESSARY.



Dated: October , 1995

Mayville, New York


____________________________

JOSEPH GERACE

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.