De Carlo v. Economy Baler Division of American Hoist & Derrick Co.

Appellate Division of the Supreme Court of New York

De Carlo v. Economy Baler Division of American Hoist & Derrick Co.

57 A.D.2d 1002, 394 N.Y.S.2d 468, 1977 N.Y. App. Div. LEXIS 12292

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

DecidedMay 12, 1977

StatusPublished

Cited by7 cases

This text of 57 A.D.2d 1002 (De Carlo v. Economy Baler Division of American Hoist & Derrick Co.) 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

De Carlo v. Economy Baler Division of American Hoist & Derrick Co., 57 A.D.2d 1002, 394 N.Y.S.2d 468, 1977 N.Y. App. Div. LEXIS 12292 (N.Y. Ct. App. 1977).

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Opinion

Appeal from an order of the Supreme Court at Special Term, entered October 28, 1976 in Schenectady County, which granted plaintiffs’ motion to serve an amended complaint. The instant action seeking damages in the total sum of $550,000 arose from an occurrence in November of 1972 and was commenced by service of a summons and the original complaint on or about April 5, 1974. A bill of particulars setting forth details of the injuries sustained by the plaintiff husband was furnished on May 20, 1974. On September 16, 1976, plaintiffs sought an order granting permission to amend the complaint by increasing the ad damnum clause to $1,500,000. The supporting affidavit on this motion, made by plaintiffs’ attorney, merely reiterated those injuries and contained no new information except for a recital that negligence verdicts in New York State were spiraling as a result of inflation during the preceding four years. The motion was granted. While permission to amend a complaint should be freely given in the proper exercise of discretion, a motion for that relief should be made promptly after discovery or awareness of the facts upon which such an amendment is predicated (Davis v City of Troy, 57 AD2d 990; Boehm Dev. Corp. v State of New York, 42 AD2d 1018; CPLR 3025, subd [b]). Moreover, the supporting affidavit to increase an ad damnum clause should be made by a party with knowledge of circumstances justifying such an application, not by an attorney lacking personal knowledge of such facts, and should be further supported by documentation from a physician (Leonard Hosp. v Messier, 32 AD2d 596; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.22). An examination of this record fails to reveal any basis upon which the court could properly exercise its discretion and, accordingly, the order must be reversed and the motion denied. Order reversed, on the law and the facts, and motion denied, without costs. Koreman, P. J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.

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Appeal from an order of the Supreme Court at Special Term, entered October 28, 1976 in Schenectady County, which granted plaintiffs’ motion to serve an amended complaint. The instant action seeking damages in the total sum of $550,000 arose from an occurrence in November of 1972 and was commenced by service of a summons and the original complaint on or about April 5, 1974. A bill of particulars setting forth details of the injuries sustained by the plaintiff husband was furnished on May 20, 1974. On September 16, 1976, plaintiffs sought an order granting permission to amend the complaint by increasing the ad damnum clause to $1,500,000. The supporting affidavit on this motion, made by plaintiffs’ attorney, merely reiterated those injuries and contained no new information except for a recital that negligence verdicts in New York State were spiraling as a result of inflation during the preceding four years. The motion was granted. While permission to amend a complaint should be freely given in the proper exercise of discretion, a motion for that relief should be made promptly after discovery or awareness of the facts upon which such an amendment is predicated (Davis v City of Troy, 57 AD2d 990; Boehm Dev. Corp. v State of New York, 42 AD2d 1018; CPLR 3025, subd [b]). Moreover, the supporting affidavit to increase an ad damnum clause should be made by a party with knowledge of circumstances justifying such an application, not by an attorney lacking personal knowledge of such facts, and should be further supported by documentation from a physician (Leonard Hosp. v Messier, 32 AD2d 596; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.22). An examination of this record fails to reveal any basis upon which the court could properly exercise its discretion and, accordingly, the order must be reversed and the motion denied. Order reversed, on the law and the facts, and motion denied, without costs. Koreman, P. J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.

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Bluebook (online)

57 A.D.2d 1002, 394 N.Y.S.2d 468, 1977 N.Y. App. Div. LEXIS 12292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-carlo-v-economy-baler-division-of-american-hoist-derrick-co-nyappdiv-1977.

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