American Network Leasing Corp. v. Prozeralik

245 A.D.2d 1135, 666 N.Y.S.2d 531, 1997 N.Y. App. Div. LEXIS 13976

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1997
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In a prior order and judgment, Supreme Court granted summary judgment to plaintiff on the issue of defendant’s liability under a guaranty agreement and directed that a hearing be held on damages. Before that hearing was scheduled, plaintiff moved for summary judgment on damages. Supreme Court properly denied the motion. Plaintiff met its initial burden by submitting the guaranty agreement and the affidavit of its vice president setting forth the amount remaining due under that agreement (see, I.P.L. Corp. v Industrial Power & Light. Corp., 202 AD2d 1029; Rochester Community Sav. Bank v Smith, 172 AD2d 1018, 1019, lv denied 79 NY2d 887). In response to the motion, however, defendant met his burden of presenting proof in admissible form demonstrating the existence of a triable issue of fact with respect to the amount of plaintiff’s damages (see, Landis Mach. Co. v Hydronic Fabrications, 41 AD2d 607; cf., I.P.L. Corp. v Industrial Power & Light. Corp., supra; Rochester Community Sav. Bank v Smith, supra).

The court abused its discretion in denying plaintiff’s motion to amend the complaint to increase the ad damnum clause. Nothing in the record suggests that defendant will be prejudiced by the proposed amendment (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, rearg denied 55 NY2d ; Barillari v Halpern, 190 AD2d 1010, 1011). We, therefore, modify the order by granting plaintiffs motion to amend the complaint. (Appeal from Order of Supreme Court, Erie County, Sconiers, J.—Summary Judgment.) Present—Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.