Summary
In Calautti v. National Transp. Co. (10 A.D.2d 955 [2d Dept.]) an order which denied an amendment of the ad damnum clause from $50,000 to $1,000,000 was reversed, although the action was commenced in 1951, and the motion was not made until 1959, the court stating that "mere lapse of time is not a sufficient ground for denial". Of course lapse of time is not necessarily laches, and it is not made clear which was involved in that case.
Summary of this case from Burden v. Cadillac Developers Corp.Opinion
May 9, 1960
In an action to recover damages for injuries to person and property, the plaintiff appeals from an order of the Supreme Court, Westchester County, entered September 9, 1959, denying his motion to amend the complaint so as to allege the total and permanent loss of his earning capacity, and to increase the demand for damages from $50,000 to $1,000,000. The action was commenced in 1951. A bill of particulars served in 1955, alleged loss of earnings of $200,000. Order reversed, with $10 costs and disbursements, and motion granted. The plaintiff shall serve and file a copy of the amended complaint within 10 days after the entry of the order hereon. In this record defendants do not dispute plaintiff's claim that, subsequent to the service of the original complaint, he ascertained that he was totally and permanently disabled and could never again be gainfully employed. There is no proof of actual prejudice to defendants. Under these circumstances, the motion should have been granted ( Nagle v. Bryn Mawr Ridge, Inc., 7 A.D.2d 1007). The mere lapse of time is not a sufficient ground for denial ( Nathanson v. Lutheran Hosp. Assn., 3 Misc.2d 540). If so advised, after service of the amended complaint, defendants may move for further physical examination of the plaintiff. Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.