Doyle v. Killeen

28 A.D.2d 969, 283 N.Y.S.2d 272, 1967 N.Y. App. Div. LEXIS 3402

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1967
• Status: Published

Opinion

Memorandum: This action was commenced in April, 1964. After having been removed from the Trial Calendar of Erie County Supreme Court it was restored thereto in February, 1966 upon the filing by plaintiff’s attorney of a new note of issue and statement certifying the case ready for trial. It reached the Day Calendar in February, 1967 and in the course of a pretrial conference plaintiff’s counsel for the first time announced that he intended to seek an order (1) increasing the ad damnum clause in the complaint from $50,000 to $200,000 and (2) permitting the service of a supplemental bill of particulars. The subsequent grant of such relief by Special Term was an improvident exercise of discretion. The vast majority of the increased monetary damage claimed to have been sustained by plaintiff accumulated many months before relief was sought. We find here no “ extraordinary and special circumstances ” (cf. Hernandez v. Ezrow, 24 A D 2d 730; Miller v. Davis, 24 A D 2d 730) that justify the delay of plaintiff until the eve of trial. (Appeal from order of Erie Special Term amending complaint in automobile negligence action.) Present — Bastow, J. P., Henry, Del Veeehio and Marsh, JJ.