Doheny v. Mab Liquors, Inc. ( 1973 )

In a negligence action to. recover damages for personal injuries of plaintiff-Mary Doheny and loss of services and medical expenses incurred by her husband, plaintiffs appeal (1) from an order of the Supreme Court, Nassau County, dated April 12, 1972, which denied their motion to remove the action from the District Court of the County of Nassau,' Second District, to the Supreme Court, Nassau County, and to amend the ad damnum clause of the complaint (a) from $5,000 to $60,000 on the personal injury cause and (b) from $1,000 to $15,000 on the loss of services cause; and (2) as limited by their briefs, from so much of an order of the same court, dated July 21, 1972, as, upon reargument, adhered to the original decision. Appeal from order dated April 12, 1972 dismissed as academic. That order was superseded by the order dated July 21, 1972. Order dated July 21, 1972 reversed, and motion to remove the action and amend the ad damnum clause granted. The amended complaint shall be served within 20 days after entry of the order to be made hereon. Appellants are granted $10 costs and disbursements to cover the appeals from both orders. The motion papers contain (1) an adequate showing by a doctor’s affidavit of (a) a causal connection between the injury and the accident and (b) a consistent course of treatment for the accident-caused injuries and (2) affidavits by the injured plaintiff, plaintiffs’ attorney, and doctors showing the merits of the case, the reason for the delay and the fact that the increase of the ad damnum clause is warranted by reason of facts which have recently come to the attention of plaintiffs, and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of plaintiffs. In our opinion it was an unwise exercise of discretion to deny the motion to increase the ad damnum clause (cf. London v. Moore, 32 A D 2d 543; Natale v. Great Atlantic & Pacific Tea Co., 8 A D 2d 781; Natale v. Pepsi-Cola Co., 7 A D 2d 282). Munder, Acting P. J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.