Fred G. Heydt Construction Co. v. Uydess

Appellate Division of the Supreme Court of New York

Fred G. Heydt Construction Co. v. Uydess

16 A.D.2d 906, 229 N.Y.S.2d 80, 1962 N.Y. App. Div. LEXIS 9106

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

DecidedJune 19, 1962

StatusPublished

This text of 16 A.D.2d 906 (Fred G. Heydt Construction Co. v. Uydess) 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

Fred G. Heydt Construction Co. v. Uydess, 16 A.D.2d 906, 229 N.Y.S.2d 80, 1962 N.Y. App. Div. LEXIS 9106 (N.Y. Ct. App. 1962).

Pincite

Opinion

Order, entered March 2, 1962, granting plaintiff’s motion for leave to amend the ad damnum clause of the first cause of action in its complaint by adding a claim to punitive damages, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellants, and the motion denied, with leave to renew upon submission of a satisfactory affidavit of merits. The first cause of action, sounding in fraud, sought damages in the sum of $11,858.67. Some three years after joinder of issue, and when the ease had been reached for trial and assigned to a Trial Part, [907]*907plaintiff sought to add $100,000 to its claim by way of punitive damages. In so moving, plaintiff relied on Walker v. Sheldon (10 N Y 2d 401), which on the facts asserted in the complaint authorized the imposition of such damages on “those who deliberately and coolly engage in a far-flung fraudulent scheme, systematically conducted for profit” (p. 406). To bring the defendants within the ambit of that decision, plaintiff’s proposed amendment merely asserts in the ad damnum clause the existence of a “virtually immoral and larcenous scheme of these defendants to trap generally the unwary ” — an adaptation of language which the Court of Appeals quoted with approval from this court’s memorandum (12 A D 2d 456). But the factual allegations of the complaint, drawn long before Walker v. Sheldon was decided, remain unchanged, nor does plaintiff make any showing of merits to justify its proposal, at this belated stage, of an eight-fold increase of the ad damnum clause under the doctrine it seeks to invoke. In seeking leave to plead in such general and conelusory form the requirement of a comprehensive affidavit of merits, setting forth fully the evidence warranting the imposition of punitive damages, becomes especially imperative. If, on renewal, plaintiff’s motion should be granted, we may add that it seems but fair to allow defendants a further pretrial examination. Concur — Botein, P. J., Stevens, Eager, Steuer and Bergan, JJ.

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Order, entered March 2, 1962, granting plaintiff’s motion for leave to amend the ad damnum clause of the first cause of action in its complaint by adding a claim to punitive damages, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellants, and the motion denied, with leave to renew upon submission of a satisfactory affidavit of merits. The first cause of action, sounding in fraud, sought damages in the sum of $11,858.67. Some three years after joinder of issue, and when the ease had been reached for trial and assigned to a Trial Part, [907]*907plaintiff sought to add $100,000 to its claim by way of punitive damages. In so moving, plaintiff relied on Walker v. Sheldon (10 N Y 2d 401), which on the facts asserted in the complaint authorized the imposition of such damages on “those who deliberately and coolly engage in a far-flung fraudulent scheme, systematically conducted for profit” (p. 406). To bring the defendants within the ambit of that decision, plaintiff’s proposed amendment merely asserts in the ad damnum clause the existence of a “virtually immoral and larcenous scheme of these defendants to trap generally the unwary ” — an adaptation of language which the Court of Appeals quoted with approval from this court’s memorandum (12 A D 2d 456). But the factual allegations of the complaint, drawn long before Walker v. Sheldon was decided, remain unchanged, nor does plaintiff make any showing of merits to justify its proposal, at this belated stage, of an eight-fold increase of the ad damnum clause under the doctrine it seeks to invoke. In seeking leave to plead in such general and conelusory form the requirement of a comprehensive affidavit of merits, setting forth fully the evidence warranting the imposition of punitive damages, becomes especially imperative. If, on renewal, plaintiff’s motion should be granted, we may add that it seems but fair to allow defendants a further pretrial examination. Concur — Botein, P. J., Stevens, Eager, Steuer and Bergan, JJ.

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Bluebook (online)

16 A.D.2d 906, 229 N.Y.S.2d 80, 1962 N.Y. App. Div. LEXIS 9106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fred-g-heydt-construction-co-v-uydess-nyappdiv-1962.