Wybaillie v. Majesty Carting Co.

60 A.D.2d 826, 401 N.Y.S.2d 226, 1978 N.Y. App. Div. LEXIS 9821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1978
• Status: Published

Opinion

Order, Supreme Court, Bronx County, entered August 2, 1977, which granted plaintiff leave to increase the ad damnum clause of his complaint from $50,000 to $250,000 and to serve an amended bill of particulars, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the motion denied. Appellants shall recover of respondent $40 costs and disbursements of this appeal. On this record no excuse is offered by plaintiff for the delay in seeking to increase the ad damnum clause of his complaint. A period of some two and one-half years had elapsed after the second accident before plaintiff initially sought to increase the ad damnum. As we observed in Koi v P. S. & M. Catering Corp. (15 AD2d 775, 776): "on an application of this nature there should be submitted plaintiff’s affidavit of merit showing the merits of the case, the reasons for the delay and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff” (see Luongo v Hollander Assoc., 54 AD2d 858). Concur—Murphy, P. J., Kupferman, Lupiano and Silverman, JJ.