Sheldon Electric Co. v. Oriental Boulevard Corp.

56 A.D.2d 886, 392 N.Y.S.2d 485, 1977 N.Y. App. Div. LEXIS 11272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1977
• Status: Published

Opinion

In an action, inter alia, to recover a balance due for work, labor and services, defendants appeal from an order of the Supreme Court, Kings County, dated November '9, 1976, which denied their motion for leave to amend the ad damnum clause of the counterclaim pleaded in their answer. Order reversed, with $50 costs and disbursements, payable by plaintiff, and motion granted. The plaintiff may, if it be so advised, conduct further oral examination of defendants with respect to the additional items of damage claimed, which examination shall proceed at such time and place as shall be fixed in a written notice of not less than 10 days, to be given by plaintiff, or at such other time and place as the parties may agree. The time within which such notice must be served is extended until 10 days after entry of the order to be made hereon. The Special Term improvidently exercised its discretion in denying defendants’ motion. The damages sustained could result in a recovery in excess of that originally demanded in the counterclaim. That counterclaim contemplated a possible increase in the amount of damages claimed; this was reflected in defendants’ bill of particulars, which specified that the full extent of the damages being suffered by them was not yet ascertainable because of the continuing nature of the damage. The policy of our courts is to liberally permit amendments of pleadings unless the rights of a party are substantially prejudiced (see Mitchell v City of New York, 44 AD2d 852). No such prejudice appears here. Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.