88 A.D.2d 787 | N.Y. App. Div. | 1982
— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Under the circumstances presented here, Special Term should have granted plaintiff’s motion to amend the ad damnum clause. “[I]n the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after trial, should generally be granted” (Loomis u Civetta Corinno Constr. Corp., 54 NY2d 18, 23; see, also, Osowicki v Engerí, 85 AD2d 778; Quirk v Lawler, 85 AD2d 597). Defendants have not claimed prejudice and prejudice does not result merely from exposure to greater liability (Loomis v Civetta Corinno Constr. Corp., supra). Nor is delay in bringing the motion generally an acceptable ground for denial (Barker v Goode, 85 AD2d 922, 923). Plaintiff supplied an affidavit from the treating physician attesting to the permanency of the injuries and an affidavit explaining that the original figure was set by counsel after he had just been consulted and had not had an opportunity to investigate the case fully due to the imminent running of the Statute of Limitations on plaintiff’s derivative action. Special Term properly denied leave to add a cause of action for products liability. Generally, leave to amend a
