Jackson v. Millar Elevator Industries, Inc.

97 A.D.2d 714, 468 N.Y.S.2d 624, 1983 N.Y. App. Div. LEXIS 20424

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1983
• Status: Published

Opinion

Order of the Supreme Court, New York County (C. Whitman, J.), entered on December 30, 1981, which denied plaintiff’s petition for leave to serve an amended complaint with an increased ad damnum clause, and to remove the action from the Civil Court of the City of New York to Supreme Court, New York County, is unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the petition is granted. On January 6, 1977, in the course of her employment as a maid in a hotel, plaintiff was injured as she stepped from an elevator manufactured by the defendant. Plaintiff alleges that the elevator stopped approximately six inches below the floor where she exited, causing her to fall. Plaintiff has received a workers’ compensation award based on a permanent loss of 10% of the use of her right arm. Although four years have elapsed between the Civil Court complaint and the petition for removal, a sufficient explanation has been submitted for the delay, and the motion is supported by a physician’s affidavit, (see Barnwell v Consolidated Edison Co., 50 AD2d 748.) Moreover, defendants have failed to demonstrate legally sufficient prejudice as a result of the removal to Supreme Court. Concur — Murphy, P. J., Kupferman, Carro, Silverman and Kassal, JJ.