Kushner v. Queens Transit Corp.

97 A.D.2d 432, 467 N.Y.S.2d 399, 1983 N.Y. App. Div. LEXIS 20013

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1983
• Status: Published

Opinion

In a personal injury action, defendants appeal from an order of the Supreme Court, Queens County (Goldstein, J.), dated September 8, 1982, which, inter alia, granted the plaintiff’s motion to remove the within action from the Civil Court to the Supreme Court, and for leave to serve an amended complaint increasing the ad damnum clause from $10,000 to $250,000. Order affirmed, with costs. Plaintiff’s time to serve an amended verified complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry. The trend in this court has been to stress prejudice to the defendant over mere delay as a basis for denying a motion to increase the ad damnum clause of a complaint (compare Strobel v Dailey, 84 AD2d 748, and Brewster v City of New York, 78 AD2d 667, with Posselt v Rosa, 60 AD2d 854, and London v Moore, 32 AD2d 543), and in this case no actual prejudice to the defendants has been demonstrated. Moreover, leave to increase the ad damnum clause has been permitted based solely upon an update (Cardone v University Hosp., 78 AD2d 645; Hillenbrand v 3801 Review Place, 72 AD2d 554) or a re-evaluation of the original injuries (Wagner v Huntington Hosp., 65 AD2d 771) where, as here, the proof is sufficient to warrant an increase (see Koupash v Grand Union Co., 34 AD2d 695; Bird v Board of Educ., 29 AD2d 812; cf. Beras v Beras, 82 AD2d 843; Carlisle v County of Nassau, 75 AD2d 593). Under these circumstances, it cannot be said that Special Term abused its discretion in granting the motion. Damiani, J. P., Gulotta, O’Connor and Rubin, JJ., concur.