Aetna Casualty and Surety Company v. William J. Hambly Et Al‪.‬

In an action inter alia to set aside a conveyance of real estate, plaintiff appeals from an order of the Supreme Court, Orange County, dated August 29, 1975, which denied its motion for leave to amend its complaint. Order modified by adding thereto, after the word denied, the following: except insofar as it pertains to the amendment of the first cause of action and to the addition of a sixth cause of action, and motion granted to that extent. As so modified, order affirmed, without costs or disbursements. Plaintiff's proposed sixth cause of action, for reasonable attorneys' fees, is closely related to the allegations in the original complaint and, since there has been no showing of prejudice to defendants, leave to amend the complaint should have been granted at least to that extent (see CPLR 3025, subd [b]; Lampman v Cairo Cent. School Dist., 47 A.D.2d 794). East Asiatic Co. v Corash (34 A.D.2d 432) does not dictate a different result since the proposed new cause of action does indeed state a cause of action. Since plaintiff should have been permitted to add a new cause of action for attorneys' fees, it is reasonable to allow it to amend the first cause of action with respect to the so-called minor changes made therein. However, Special Term properly denied plaintiff's motion insofar as it sought (1) to change the amount of damages demanded pursuant to its fifth cause of action and (2) to add a new cause of action for punitive damages. No reason was given by plaintiff for its proposed change in the amount of damages sought. Absent a showing of why the amount of damages demanded should be changed, Special Term was well within its discretionary powers in denying leave to amend in this respect. The subject of punitive damages is a matter for the Judge's charge at the trial, dependent upon the circumstances shown in the proof (cf. Knibbs v Wagner, 14 A.D.2d 987). Hopkins, Acting P.J., Margett, Damiani, Christ and Hawkins, JJ., concur.