Opinion
October 24, 1967
Order entered May 23, 1967, herein appealed from, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion to amend the amended complaint denied, with $30 costs and disbursements to appellant. September 2, 1960 plaintiff sustained certain injuries. This action was commenced May 22, 1962. Subsequently and in September, 1964 plaintiff moved successfully to amend the ad damnum clause to raise the amount sought from $50,000 to $150,000. In the motion, which resulted in the order appealed from, plaintiff sought to increase the ad damnum to $500,000, and to allege a claim of unseaworthiness. Special Term granted the motion and deemed the complaint and bill of particulars amended accordingly, though no proposed amended complaint was attached to the moving papers. Plaintiff and the court considered the allegations previously pleaded as sufficient to sustain the claim of unseaworthiness. If that conclusion be correct there is no need to amend the pleadings by the addition of another and separate claim or theory of recovery. This case has been on the Ready Day Calendar since January 20, 1967. The medical reports relied on are dated in April, 1963, and July, 1964, and were used in plaintiff's successful motion in September, 1964, to increase the ad damnum clause. No satisfactory explanation is given or excuse offered for the long delay in waiting until the eve of trial to move for the relief now sought. The motion should have been denied ( Koi v. P.S. M. Catering Corp., 15 A.D.2d 775).
Concur — Stevens, J.P., Eager, Capozzoli, Tilzer and Rabin, JJ.