Koenig v. Scott , 338 N.Y.S.2d 585 ( 1972 )

In a negligence action to recover damages for personal injuries, etc., defendant appeals (1) from an order of the Supreme Court, Suffolk County, entered October 18, 1971, which inter alia granted plaintiff Peter Koenig’s motion to increase the ad damnum clause of his cause of hetion from $6,000 to $150,000 and to transfer the action from the District Court of Suffolk County to the Supreme Court, Suffolk County, and (2) as limited by her brief, from so much of an order of the same court dated December 17, 1971, as, upon reargument, adhered to the original decision. Appeal from order entered October 18, 1971 dismissed as -academic. That order was superseded by the order dated December 17, 1971. Order dated December 17, 1971 reversed insofar as appealed from, and original motion by plaintiff Peter Koenig denied. Appellant is awarded one bill of $10 costs and disbursements against plaintiff Peter Koenig to cover the appeals from both orders. In our view, under the circumstances of this case, and particularly since the motion by plaintiff Peter Koenig was not made until after trial had been commenced in the District Court, it was an improvident exercise of discretion to grant the motion. Rabin, P. J., Martuscello, Latham and Shapiro, JJ., concur; Munder, J., concurs in the dismissal of the appeal from the order entered October 18, 1971, but otherwise dissents and votes to affirm the order dated December 17, 1971 insofar as appealed from.