______________________________

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.