DI MARTINO v. 2060 (1999)

 Supreme Court erred in granting the motions of defendants Town Ford, Glenn Sickles, Co-Part, Inc., f/k/a New England Recoveries, 2060 Auto Parts, Inc. and Sheryl Serwacki and the cross motion of defendant Universal Underwriters Insurance Company to dismiss the complaint against them.   In determining whether the complaint asserts causes of action for both wrongful death and pain and suffering, the court “ ‘must deem the complaint to allege whatever can be inferred from its statements by fair and reasonable intendment, however imperfectly, informally or illogically facts may be stated therein’ ” (Barrows v. Rozansky, 111 A.D.2d 105, 107, 489 N.Y.S.2d 481, quoting Pace v. Perk, 81 A.D.2d 444, 449, 440 N.Y.S.2d 710;  see, CPLR 3026;  see also, Cole v. O'Tooles of Utica, 222 A.D.2d 88, 90, 643 N.Y.S.2d 283;  Tuffley v. City of Syracuse, 82 A.D.2d 110, 113, 442 N.Y.S.2d 326).   Because the complaint states a negligence cause of action seeking damages for pain and suffering, it was error to deny plaintiffs' motion to amend the complaint to state that cause of action more clearly (see, CPLR 3025[b];  Hogarth v. City of Syracuse [appeal No. 1], 238 A.D.2d 887, 660 N.Y.S.2d 779, lv. dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 272, 686 N.E.2d 1367).

Order insofar as appealed from unanimously reversed on the law without costs, motions and cross motion denied and complaint against defendants Town Ford, Glenn Sickles, Co-Part, Inc., f/k/a New England Recoveries, 2060 Auto Parts, Inc., Sheryl Serwacki and Universal Underwriters Insurance Company reinstated.

MEMORANDUM: