Posselt v. Rosa

60 A.D.2d 854, 401 N.Y.S.2d 2, 1978 N.Y. App. Div. LEXIS 9880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1978
• Status: Published

Opinion

In Action No. 2, a negligence action to recover damages for personal injuries, the defendants therein appeal from an order of the Supreme Court, Queens County, entered October 7, 1976, which granted the motion of the plaintiff therein for leave to amend the ad damnum clause of his complaint. Order reversed, without costs or disbursements, and motion denied, without prejudice to a renewal thereof upon a proper showing by (1) doctor’s affidavit of a causal connection between the allegedly increased injury and the accident sued upon and (2) an affidavit by plaintiff as to the merits of the case and the delay in the making of the motion. It was an improper exercise of discretion to allow plaintiff to amend the ad damnum clause upon the papers submitted in support of the motion (see London v Moore, 32 AD2d 543; 3 Weinstein-KornMiller, NY Civ Prac, par 3025.22). Suozzi, J. P., Rabin, Shapiro and O’Con-nor, JJ., concur.