Strobel v. Dailey

84 A.D.2d 748, 444 N.Y.S.2d 13, 1981 N.Y. App. Div. LEXIS 15921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1981
• Status: Published

Opinions

In consolidated actions to recover damages for wrongful death, conscious pain and suffering, personal injuries and loss of services, defendants Dusica Radulovic and Pioneer Bus Company, Inc., separately appeal from so much of an order of the Supreme Court, Kings County (Rader, J.), dated January 8,1981, as granted that branch of plaintiffs’ motion which was to increase the ad damnum clause with respect to two of the causes of action of their complaint. Order affirmed insofar as appealed from, with one bill of $50 costs and disbursements. The trend of this court is to stress prejudice to the defendant over mere delay as a basis for denying an increase in the ad damnum clause of a complaint (see Hillenbrand v 3801 Review Place, 72 AD2d 554; Robbins v Sperlazza, 72 AD2d 558). Leave to increase has been permitted based solely upon a re-evaluation of damages (Wagner v Huntington Hosp., 65 AD2d 771). In light of this liberal view allowing amendment, the motion for leave to increase the ad damnum clause was properly granted. We note, however that the validity of plaintiffs’ claim for psychic injury was not raised at Special Term and therefore we will not consider it here. Lazer, J. P., Rabin and Bracken, JJ., concur.