City of Watertown v. Roy , 423 N.Y.S.2d 774 ( 1979 )

Callahan, J.

(dissenting). CPLR 3025 (subd [b]) prescribes that leave to amend pleadings shall be freely given upon such terms as may be just. It is well established that permission to increase the ad damnum clause in an action for damages lies within the sound discretion of the court. The delay in this case was caused not by the plaintiff but rather by the unavailability of the defendant. An examination before trial was conducted of all parties upon the return of the defendant to the jurisdiction. The motion to amend the ad damnum clause was made by the plaintiff’s counsel upon receipt of a medical report indicating more extensive injuries and damages. Defendant elected not to have a physical examination of plaintiff nor demanded a further bill of particulars, while on notice of the extent and nature of plaintiff’s damages from disclosures made in a companion action. Where knowledge is had by defendant of the nature of the damages, delay alone in seeking amendatory ad damnum relief does not constitute prejudice sufficient to warrant denial. (Finn v Crystal Beach Tr. Co., 55 AD2d 1001.) Since the defendant cannot justly claim prejudice or surprise, Special Term did not abuse its discretion as a matter of law in granting plaintiff’s motion to amend. (Fahey v County of Ontario, 44 NY2d 934.) (Appeal from order of Jefferson Supreme Court—amend complaint.) Present—Hancock, Jr., J. P. Schnepp, Callahan, Doerr and Moule, JJ.