Bird v. Board of Education of North Colonie Central Schools

29 A.D.2d 812, 286 N.Y.S.2d 888, 1968 N.Y. App. Div. LEXIS 4648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 1968
• Status: Published

Opinion

Staley, Jr., J.

Appeal by the defendant Fred Medart Products, Inc., from an order of the Supreme Court at Special Term, entered March 29, 1967 in Albany County, which granted a motion by the plaintiff Adaleda Bird to increase the ad damnum clause of her complaint from $25,000 to $100,000. CPLR 3025 (subd. [b]) concerning amendment of pleadings, provides that “ Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.” “It is now well established that permission to increase the ad damnum clause in an action for damages for personal injuries lies within the sound discretion of the court.” (Soulier v. Harrison, 21 A D 2d 725.) “ Defendant’s charge of mere delay, without resultant prejudice, presents no valid reason for depriving plaintiff of an opportunity to seek a full redress for the wrong inflicted, if so it be found.” (Rosas v. Walter Co., 42 Mise 2d 378, 380.) The medical affidavit submitted in support of the motion sufficiently demonstrates the nature of the plaintiff’s injuries, their prospective consequences, and their causal relationship to the accident. There is no claim of increased injuries, and the plaintiff is merely seeking to correct an undervaluation of such injuries. The moving affidavits were sufficient for Special Term to determine the question of the inadequacy of the original demand. We see no reason to disturb the determination of Special Term. Order affirmed, with costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Staley, Jr., J.