Gretz v. Henry's Schwinn Cyclery, Inc.

84 A.D.2d 863, 444 N.Y.S.2d 754, 1981 N.Y. App. Div. LEXIS 16109

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1981
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term (Quinn, J.), entered June 30,1980 in Schenectady County, which denied plaintiff’s motion for permission to serve a supplemental bill of particulars and an amended complaint increasing the ad damnum clause. While pretrial motions to amend pleadings to increase the amount of relief requested in the ad damnum clause of the complaint have encountered some resistance over the years and postverdict motions for like relief have uniformly been denied, the recent case of Loomis v Civetta Corinno Constr. Corp. (54 NY2d 18) has clarified this troublesome area of pleading practice by extinguishing the difference between pretrial and postverdict motions to amend the ad damnum clause upward by holding that, in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted. Prejudice, the Loomis opinion cautions, is not mere exposure of the defendant to greater liability. Rather, “there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” (p 23). Here, the supplemental bill of particulars merely increases the medical bills which, of course, must be proved at trial. There is no prejudice to the defendant. Order reversed, on the law and the facts, without costs, and motion granted. Mahoney, P.J., Kane, Yesawich, Jr., Weiss and Herlihy, JJ., concur.