National Grange Mutual Insurance v. Brawdy

238 A.D.2d 943, 661 N.Y.S.2d 549, 1997 N.Y. App. Div. LEXIS 4776

Opinion

—Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted that part of plaintiffs motion seeking to increase the ad damnum clause of the complaint (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, rearg denied 55 NY2d 801; De Mund v Martin, 103 AD2d 837, 839). The court erred, however, in granting that part of plaintiffs motion seeking summary judgment on the amended complaint without permitting defendants the opportunity to submit an amended answer (see, CPLR 3025 [d]) because defendants have alleged a defense to a portion of the increase in the ad damnum clause. Consequently, we modify the order and judgment by denying that part of plaintiffs motion seeking summary judgment, and by vacating the money judgment. We further modify the order and judgment by granting defendants 20 days from the date of service of a copy of the order of this Court with notice of entry to serve an amended answer to the amended complaint. (Appeal from Order and Judgment of Supreme Court, Erie County, Michalek, J.—Summary Judgment.) Present—Denman, P.J., Green, Lawton, Balio and Fallon, JJ.