Barker v. Goode

Appellate Division of the Supreme Court of New York

Barker v. Goode

85 A.D.2d 922, 446 N.Y.S.2d 764, 1981 N.Y. App. Div. LEXIS 16768

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1981

StatusPublished

Cited by4 cases

This text of 85 A.D.2d 922 (Barker v. Goode) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barker v. Goode, 85 A.D.2d 922, 446 N.Y.S.2d 764, 1981 N.Y. App. Div. LEXIS 16768 (N.Y. Ct. App. 1981).

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Opinion

Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff’s motion to increase the ad damnum clause in his action for personal injury from $25,000 to $150,000 should have been granted. Where a motion to increase the ad damnum clause is made on the eve of trial, plaintiff should submit affidavits showing that the demand in the complaint is inadequate, that the increase is warranted by reason of a recent discovery of additional facts, and that the failure or negligence necessitating the amendment is excusable so far as these facts are within the knowledge of the plaintiff {Lycett [923]*923v Niagara Frontier Tr. Systems, 81 AD2d 1034; Galarza v Alcoa S. S. Co., 34 AD2d 907; Koi vP.S. & M. Catering Corp., 15 AD2d 775). However, where, as here, the motion to amend is made in advance of trial, prior to the filing of the note of issue and statement of readiness, and defendants do not exhibit prejudice, the increase should be granted where it constitutes a mere reevaluation of plaintiff’s cause of action by substituted counsel, adding no substantive change to his complaint against the defendants (Luchsinger v County Onondaga, 63 AD2d 819; Finn v Crystal Beach Tr. Co. [Appeal No. 2], 55 AD2d 1001). Although defendant Ceco claimed it would be prejudiced by the granting of the motion, made approximately one year after the action was commenced and four years after the alleged accident, it made no showing of how such prejudice would result; delay in moving to increase the ad damnum clause is not, per se, an acceptable ground for denying the motion (Levine v City of New York, 78 AD2d 636), especially where defendant has knowledge of the injuries sustained by plaintiff (Snyder v Wilson, 73 AD2d 1061; Allen v Pohl, 63 AD2d 1118). The Court of Appeals has recently, in Loomis v Corinno Constr. Corp., (54 NY2d 18), held that a Trial Judge may grant a motion for increased damages even after the verdict. (Appeal from order of Onondaga Supreme Court, Murphy, J. — increase ad damnum clause.) Present — Simons, J. P., Callahan, Doerr, Denman and Moule, JJ.

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Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff’s motion to increase the ad damnum clause in his action for personal injury from $25,000 to $150,000 should have been granted. Where a motion to increase the ad damnum clause is made on the eve of trial, plaintiff should submit affidavits showing that the demand in the complaint is inadequate, that the increase is warranted by reason of a recent discovery of additional facts, and that the failure or negligence necessitating the amendment is excusable so far as these facts are within the knowledge of the plaintiff {Lycett [923]*923v Niagara Frontier Tr. Systems, 81 AD2d 1034; Galarza v Alcoa S. S. Co., 34 AD2d 907; Koi vP.S. & M. Catering Corp., 15 AD2d 775). However, where, as here, the motion to amend is made in advance of trial, prior to the filing of the note of issue and statement of readiness, and defendants do not exhibit prejudice, the increase should be granted where it constitutes a mere reevaluation of plaintiff’s cause of action by substituted counsel, adding no substantive change to his complaint against the defendants (Luchsinger v County Onondaga, 63 AD2d 819; Finn v Crystal Beach Tr. Co. [Appeal No. 2], 55 AD2d 1001). Although defendant Ceco claimed it would be prejudiced by the granting of the motion, made approximately one year after the action was commenced and four years after the alleged accident, it made no showing of how such prejudice would result; delay in moving to increase the ad damnum clause is not, per se, an acceptable ground for denying the motion (Levine v City of New York, 78 AD2d 636), especially where defendant has knowledge of the injuries sustained by plaintiff (Snyder v Wilson, 73 AD2d 1061; Allen v Pohl, 63 AD2d 1118). The Court of Appeals has recently, in Loomis v Corinno Constr. Corp., (54 NY2d 18), held that a Trial Judge may grant a motion for increased damages even after the verdict. (Appeal from order of Onondaga Supreme Court, Murphy, J. — increase ad damnum clause.) Present — Simons, J. P., Callahan, Doerr, Denman and Moule, JJ.

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Bluebook (online)

85 A.D.2d 922, 446 N.Y.S.2d 764, 1981 N.Y. App. Div. LEXIS 16768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-goode-nyappdiv-1981.

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