Rutkowski v. Geist

96 A.D.2d 900, 466 N.Y.S.2d 73, 1983 N.Y. App. Div. LEXIS 19509

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gowan, J.), dated January 3, 1983, which denied their motion to amend their complaint so as to increase the ad damnum clause. Order reversed, without costs or disbursements, and motion granted. Plaintiffs’ time to serve an amended complaint containing the increased ad damnum clause is extended until 20 days after service upon them of 'a copy of the order to be made hereon, with notice of entry. Defendant is granted leave to conduct a further physical examination of plaintiff Patricia Rutkowski, if he be so advised, at a time and place to be fixed in a written notice of not less than 10 days, or at such other time and place as the parties may agree. Since there was no showing of prejudice to the defendant indicating that he had been hindered in preparing his defense or prevented from taking some measure in support of his position, the motion to amend the complaint so as to increase the ad damnum clause should have been granted (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18; Esposito v Time Motor Sales, 88 AD2d 902; Maddox v City of New York, 90 AD2d 535; see, also, Colon v Fong, 90 AD2d 817). Gibbons, J. P., Thompson, Niehoff and Rubin, JJ., concur.