Petropol v. Shahid

Yesawich, Jr., J.

Appeal from an order of the Supreme Court at Special Term (Torraca, J.), entered June 27, 1984 in Rensselaer County, which granted plaintiff’s motion for leave to serve an amended complaint.

After filing a note of issue and statement of readiness in this personal injury action, wherein it was claimed that plaintiffs daughter was bitten by defendants’ dog, plaintiff sought and received permission to serve an amended complaint increasing the ad damnum clause from $5,500 to $10,-500. Plaintiffs justification for the larger ad damnum is the continuing emotional problems the infant is said to endure with respect to dogs; no medical documentation is provided. We affirm.

Generally, absent prejudice to the opposing party, it is not inappropriate to allow an increase in the ad damnum clause prior to trial (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 21). Here, the prejudice apparently accruing to defendants as a result of the amendment is that it enables plaintiff to circumvent mandatory arbitration. Even if that was plaintiffs motivation, it is hardly conclusive, for CPLR 3405 assures to any party a jury trial de novo after the arbitrator’s determination.

Order affirmed, with costs. Kane, J. P., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.