Mykulak v. New York Journal American

Appellate Division of the Supreme Court of New York

Mykulak v. New York Journal American

44 A.D.2d 791, 355 N.Y.S.2d 386, 1974 N.Y. App. Div. LEXIS 5080

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

DecidedMay 7, 1974

StatusPublished

Cited by3 cases

This text of 44 A.D.2d 791 (Mykulak v. New York Journal American) 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.

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Mykulak v. New York Journal American, 44 A.D.2d 791, 355 N.Y.S.2d 386, 1974 N.Y. App. Div. LEXIS 5080 (N.Y. Ct. App. 1974).

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Opinion

Judgment, Supreme Court, New York County, entered on June 29, 1973, unanimously affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Concur — McGivern, P. J., Murphy and Lane, JJ.; Markewieh and Kupferman, JJ., concur in the following memorandum by Markewieh, J.: I concur in the result of affirmance, but here again we find an instance of increase of ad damnum granted by the court at the moment of trial, not upon the usually required papers (see, e.g., Koupash v. Grand Union Co., 34 A D 2d 695), but on oral application based solely upon service of a notice of intention to move to amend at trial. Indeed, when the jury returned a verdict for $1,000 more than the amount of the new ad damnum, the Trial Justice, promptly and sua sponte, further increased the ad damnum accordingly. Trial counsel astutely consented to reduction of the verdict by $1,000. The action of the court comes sufficiently close to abuse of discretion to justify calling attention to a practice which we have condemned again and again. (See Koi v. P. S. & M. Catering Corp., 15 A D 2d 775; Galarza v. Alcoa S.S. Co., 34 A D 2d 907; Osborne v. Miller, 38 A D 2d 298; and most recently Coleman v. New York City Tr. Auth., 44 A D 2d 673.)

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Judgment, Supreme Court, New York County, entered on June 29, 1973, unanimously affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Concur — McGivern, P. J., Murphy and Lane, JJ.; Markewieh and Kupferman, JJ., concur in the following memorandum by Markewieh, J.: I concur in the result of affirmance, but here again we find an instance of increase of ad damnum granted by the court at the moment of trial, not upon the usually required papers (see, e.g., Koupash v. Grand Union Co., 34 A D 2d 695), but on oral application based solely upon service of a notice of intention to move to amend at trial. Indeed, when the jury returned a verdict for $1,000 more than the amount of the new ad damnum, the Trial Justice, promptly and sua sponte, further increased the ad damnum accordingly. Trial counsel astutely consented to reduction of the verdict by $1,000. The action of the court comes sufficiently close to abuse of discretion to justify calling attention to a practice which we have condemned again and again. (See Koi v. P. S. & M. Catering Corp., 15 A D 2d 775; Galarza v. Alcoa S.S. Co., 34 A D 2d 907; Osborne v. Miller, 38 A D 2d 298; and most recently Coleman v. New York City Tr. Auth., 44 A D 2d 673.)

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44 A.D.2d 791, 355 N.Y.S.2d 386, 1974 N.Y. App. Div. LEXIS 5080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mykulak-v-new-york-journal-american-nyappdiv-1974.

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