Wagner v. Huntington Hospital

65 A.D.2d 771, 410 N.Y.S.2d 121, 1978 N.Y. App. Div. LEXIS 13607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1978
• Status: Published

Opinion

In consolidated medical malpractice actions, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County, dated April 21, 1978, as denied the branch of their motion which sought to increase the ad damnum clause of the complaints in each action. Order modified by deleting therefrom the provision which denied, in its entirety, the said branch of the motion and substituting therefor a provision granting the said branch of the motion to the extent of increasing the amounts in the ad damnum clause in Action No. 1 to $3,000,000 on the first cause of action (for personal injuries) and $1,000,000 on the second cause of action (for loss of services). As so modified, order affirmed insofar as appealed from, without costs or disbursements. Special Term denied plaintiffs any increase in the ad damnum clauses because no new or aggravated injuries were asserted and because of a lapse of nearly five years from service of the complaint in the first lawsuit. Contrary to the conclusion of Special Term, plaintiffs were not required to allege recently discovered, new or aggravated injuries (see Gold v Huntington Town House, 64 AD2d 887). A re-evaluation of the damages was sufficient (see Koupash v Grand Union Co., 34 AD2d 695). There is no proof of actual prejudice to defendants resulting from the delay and, therefore, plaintiffs’ demand for an increase in the ad damnum clause is not barred by laches (see Calautti v National Transp. Co., 10 AD2d 955). In the instant case, plaintiffs re-evaluated the special damages for the personal injuries at upwards of $1,500,000. Further, the record supports the conclusion that only after service of the original complaint did the permanency of the infant plaintiff’s profound injuries become apparent (see Calautti v National Transp. Co., supra). We note that the ad damnum clause of the complaint in Action No. 2, which was served nearly three years after the complaint in Action No. 1, demands $3,000,000 on the personal injury claim and $1,000,-000 on the loss of services claim. However, plaintiffs’ request to increase the ad damnum clauses for the loss of services claim to $2,000,000 is not supported by any computation of actual damages (cf. CPLR 3017, subd [c]), as added by L 1976, ch 955, § 10, eff Aug. 26, 1976). Shapiro, J. P., Cohalan, Hargett and O’Connor, JJ., concur.