Thomas Cox v. New York Telephone Company

[10 A.D.2d 565 Page 565] Permission to increase the ad damnum clause in an action for damages for personal injuries lies within the sound discretion
of the court. (Natale v. Pepsi-Cola Co., 7 A.D.2d 282, 284; Natale v. Great Atlantic & Pacific Tea Co., 8 A.D.2d 781;
Teplinsky v. Kamensky, 9 A.D.2d 671.) In exercising that discretion, the court must weigh such factors as the time when the
amendment is sought, the laches of plaintiff and possible prejudice to defendants. Here a suit was commenced against New York
Telephone Company in February, 1952, wherein plaintiff claimed $50,000 damages for injuries alleged to have been sustained
in August, 1951, when plaintiff fell into a depression which the Telephone Company had dug in connection with laying ducts
and wires during the construction of housing development. The Telephone Company, in an answer served in March, 1952, cross-claimed
against the defendant DeLee Contracting Co., Inc. -- which had actually done the excavating work -- upon the basis of common
law and contractual indemnity. The cause appeared on the Day Calendar for trial at least 33 times between February 9, 1956
and January 9, 1959, and was marked "ready" on many of such occasions. In November, 1956, plaintiff moved to amend his bill
of particulars and, following the granting of that motion on reargument, plaintiff's attorney submitted an order containing
a proposed new bill of particulars increasing the amount of the claim for lost earnings from $300 to $40,000. Certainly at
that time plaintiff was aware of the necessity for an increase in the ad damnum clause, if it was to be applied for. But
no application was then made for such relief. On the contrary, in June, 1958, a statement of readiness was served and filed,
and a motion was made and granted to restore to the Trial Calendar. Then, too, plaintiff made no application for, nor gave
any indication of, a desire to amend the ad damnum clause of the complaint. The first motion to amend the complaint to increase
the claim for damages to $250,000 was made on August 26, 1958, and denied on September 5, 1958 with leave to renew "upon presentation
of proper medical corroboration". The renewal motion, resulting in the order appealed from, was made in December, 1958 returnable
[10 A.D.2d 565 Page 566]