Deloris Church v. Catholic Medical Center of Brooklyn & Queens, Inc.

52 A.D.2d 898, 383 N.Y.S.2d 81, 1976 N.Y. App. Div. LEXIS 12742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1976
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, entered December 11, 1975, which, inter alia, granted plaintiffs’ motion for leave to amend the ad damnum clause of the complaint to the extent of permitting its increase to the sum of $500,000. Order affirmed, without costs or disbursements, on condition that plaintiffs’ attorneys pay the sum of $200 to the defendants, within 40 days after service upon plaintiffs of a copy of the order to be made hereon, together with notice of entry thereof; in the event such condition is not complied with, order reversed, with $50 costs and disbursements and motion denied. The further examination before trial and further physical examination of plaintiff Deloris Church directed in the order under review shall proceed at such times and places as shall be fixed in separate written notices of not less than 10 days each, to be given by defendants, or at such other times and places as the parties may agree. As plaintiffs’ motion to amend is based solely upon an update of original injuries, they need not comply with the affidavit requirement of London v Moore (32 AD2d 543). Plaintiff Deloris Church was treated at the defendants’ clinic and did not see a private physician until four and one-half years after the accident. Moreover, much of the delay in moving to amend is attributed to a former attorney. Under the circumstances, the delay in the realization of the full extent of her injuries should not bar an increase of the ad damnum clause (cf. Liggieri v Pasternack, 51 AD2d 731). Cohalan, Acting P. J., Damiani, Rabin, Titone and Hawkins, JJ., concur.