Petropol v. Shahid

Appellate Division of the Supreme Court of New York

Petropol v. Shahid

115 A.D.2d 820, 495 N.Y.S.2d 778, 1985 N.Y. App. Div. LEXIS 55213

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

DecidedDecember 5, 1985

StatusPublished

This text of 115 A.D.2d 820 (Petropol v. Shahid) 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.

Bluebook

Petropol v. Shahid, 115 A.D.2d 820, 495 N.Y.S.2d 778, 1985 N.Y. App. Div. LEXIS 55213 (N.Y. Ct. App. 1985).

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Opinion

Yesawich, Jr., J.

Appeal from an order of the Supreme Court at Special Term (Torraca, J.), entered June 27, 1984 in [821]*821Rensselaer County, which granted plaintiff’s motion for leave to serve an amended complaint.

After filing a note of issue and statement of readiness in this personal injury action, wherein it was claimed that plaintiffs daughter was bitten by defendants’ dog, plaintiff sought and received permission to serve an amended complaint increasing the ad damnum clause from $5,500 to $10,-500. Plaintiffs justification for the larger ad damnum is the continuing emotional problems the infant is said to endure with respect to dogs; no medical documentation is provided. We affirm.

Generally, absent prejudice to the opposing party, it is not inappropriate to allow an increase in the ad damnum clause prior to trial (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 21). Here, the prejudice apparently accruing to defendants as a result of the amendment is that it enables plaintiff to circumvent mandatory arbitration. Even if that was plaintiffs motivation, it is hardly conclusive, for CPLR 3405 assures to any party a jury trial de novo after the arbitrator’s determination.

Order affirmed, with costs. Kane, J. P., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.

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Yesawich, Jr., J.

Appeal from an order of the Supreme Court at Special Term (Torraca, J.), entered June 27, 1984 in [821]*821Rensselaer County, which granted plaintiff’s motion for leave to serve an amended complaint.

After filing a note of issue and statement of readiness in this personal injury action, wherein it was claimed that plaintiffs daughter was bitten by defendants’ dog, plaintiff sought and received permission to serve an amended complaint increasing the ad damnum clause from $5,500 to $10,-500. Plaintiffs justification for the larger ad damnum is the continuing emotional problems the infant is said to endure with respect to dogs; no medical documentation is provided. We affirm.

Generally, absent prejudice to the opposing party, it is not inappropriate to allow an increase in the ad damnum clause prior to trial (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 21). Here, the prejudice apparently accruing to defendants as a result of the amendment is that it enables plaintiff to circumvent mandatory arbitration. Even if that was plaintiffs motivation, it is hardly conclusive, for CPLR 3405 assures to any party a jury trial de novo after the arbitrator’s determination.

Order affirmed, with costs. Kane, J. P., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.

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Bluebook (online)

115 A.D.2d 820, 495 N.Y.S.2d 778, 1985 N.Y. App. Div. LEXIS 55213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petropol-v-shahid-nyappdiv-1985.

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