Levine v. City of New York

78 A.D.2d 636, 432 N.Y.S.2d 113, 1980 N.Y. App. Div. LEXIS 13110

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Kings County, dated April 2, 1980, which denied their motion to increase the ad damnum clause of the complaint. Order reversed, with $50 costs and disbursements, and plaintiffs’ motion is granted. Since plaintiffs’ motion to amend the ad damnum was based solely upon an update and re-evaluation of the original injuries, it was an abuse of discretion for Special Term to deny the motion on the ground that plaintiffs’ medical affidavits had failed to show "sufficient differentiation between the [injured] plaintiff’s condition prior to the accident and subsequent thereto to warrant * * * [an] increase in the amount of damages sought” from $100,000 to $1,000,000. Under such circumstances, proof of a causal connection between the accident and the injuries alleged is not necessary (see Hillenbrand v 3801 Review Place, 72 AD2d 554; see, also, Wagner v Huntington Hosp., 65 AD2d 771). Additionally, the delay in making the instant motion is not per se an acceptable ground for denial in view of the fact that defendants have failed to demonstrate in what manner they would suffer actual prejudice at trial were the amendment to be granted (see Wagner v Huntington Hosp., supra; Finn v Crystal Beach Tr. Co., 55 AD2d 1001). Damiani, J. P., Gibbons, Gulotta and Weinstein, JJ., concur.