David v. Astrologo

24 A.D.3d 251, 805 N.Y.S.2d 283

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 2005
• Status: Published

Opinion

Order (denominated a judgment), Supreme Court, New York County (Kibbie F. Payne, J), entered on or about May 13, 2004, which denied plaintiff Rosalie David’s motion to remove and transfer the action from New York City Civil Court, New York County, to the Supreme Court, New York County, and to increase the ad damnum clause from $25,000 to $1,000,000 with respect to her claim of negligence, without prejudice to renewal upon adequate papers, unanimously affirmed, without costs.

While leave to amend shall be freely given in the absence of prejudice, plaintiff failed to submit an affidavit of merit sufficiently demonstrating the reasons for her delay in moving for the relief sought and the facts warranting the ad damnum increase. Nor was the motion accompanied by a physician’s affidavit substantiating plaintiffs claims as to the permanence of her injuries and her need of future surgery (see Dolan v Garden City Union Free School Dist., 113 AD2d 781 [1985]; Brennan v City of New York, 99 AD2d 445 [1984]). Concur—Tom, J.P., Marlow, Williams, Gonzalez and Malone, JJ.