Wagner v. Variano

Appellate Division of the Supreme Court of New York

Wagner v. Variano

253 A.D.2d 427, 676 N.Y.S.2d 636, 1998 N.Y. App. Div. LEXIS 8792

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 3, 1998

StatusPublished

This text of 253 A.D.2d 427 (Wagner v. Variano) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wagner v. Variano, 253 A.D.2d 427, 676 N.Y.S.2d 636, 1998 N.Y. App. Div. LEXIS 8792 (N.Y. Ct. App. 1998).

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Opinion

In an action to recover damages for conversion and to impose a constructive trust, the plaintiff appeals, as limited by her brief, from so much of an [428]*428order of the Supreme Court, Westchester County (DiBlasi, J.), dated August 4, 1997, as denied those branches of her cross motion which were for leave to increase the ad damnum clause of the complaint and to amend the second cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to offer competent proof showing that the amount of money alleged to have been converted is greater than the amount originally alleged in the complaint. Therefore, the Supreme Court did not improvidently exercise its discretion in denying that branch of her cross motion which was for leave to increase the ad damnum clause of the complaint (see, Wavecrest Apts. Corp. v Jarmain, 183 AD2d 711, 713; Century Resources Corp. v Weir, 134 AD2d 398).

Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs cross motion which sought leave to amend the second cause of action to reflect that the money allegedly converted had not only been given to her by her mother but by her father as well. The plaintiff failed to give a reasonable excuse for the delay, until the eve of trial, in asserting a fact which was known to her from the inception of the action (see, Mohammed v City of New York, 242 AD2d 321). Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.

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In an action to recover damages for conversion and to impose a constructive trust, the plaintiff appeals, as limited by her brief, from so much of an [428]*428order of the Supreme Court, Westchester County (DiBlasi, J.), dated August 4, 1997, as denied those branches of her cross motion which were for leave to increase the ad damnum clause of the complaint and to amend the second cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to offer competent proof showing that the amount of money alleged to have been converted is greater than the amount originally alleged in the complaint. Therefore, the Supreme Court did not improvidently exercise its discretion in denying that branch of her cross motion which was for leave to increase the ad damnum clause of the complaint (see, Wavecrest Apts. Corp. v Jarmain, 183 AD2d 711, 713; Century Resources Corp. v Weir, 134 AD2d 398).

Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs cross motion which sought leave to amend the second cause of action to reflect that the money allegedly converted had not only been given to her by her mother but by her father as well. The plaintiff failed to give a reasonable excuse for the delay, until the eve of trial, in asserting a fact which was known to her from the inception of the action (see, Mohammed v City of New York, 242 AD2d 321). Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.

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Bluebook (online)

253 A.D.2d 427, 676 N.Y.S.2d 636, 1998 N.Y. App. Div. LEXIS 8792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-variano-nyappdiv-1998.

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