ad damnum clause in New York

2024NO. 94 RECEIVED NYSCEF: 10/08/2024 ANALYSIS \\In the absence of prejudice, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted" (Heller v Louis Provenzano, Inc., 303 AD2d 20, 22 [1st Dept 2003] citing Loomis v Civetta Corinne Const. Corp., 54 NY2d 18 [1981]; see Brennan v City of New York, 99 AD2d 445 [1st 1984].

2007The Loomis court therefore concluded that a trial court presented with a motion to amend an ad damnum clause should weigh the same considerations as applied when considering a motion to amend a complaint and allow the amendment at any stage of the proceedings if no prejudice to the defendant has been shown. ( 54 NY2d at 23 .) Here, the proposed amendment is limited in scope; plaintiff seeks only to add an express demand for punitive damages.

2003(See e.g., Huston v Rao, supra; Pulerwitz v Rand, 141 AD2d 623 [2d Dept 1988]; Mittman v International Menswear, 125 AD2d 377 [2d Dept 1986].) A motion to increase the ad damnum clause must be made in Supreme Court because Civil Court does not have the power to grant such relief.

1999(See, e.g., Huston v Rao, 74 AD2d 127, 130 [2d Dept 1980] [where plaintiff, in action transferred to Civil Court pursuant to CPLR 325 (d), seeks to amend the ad damnum clause, plaintiff must first move to re-transfer the action to Supreme Court and then move to amend in Supreme Court]; Gordon v Board of Educ., 134 Misc 2d 284 [Civ Ct, Kings County 1987] [same].) It makes absolutely no sense, however, to punt this somewhat routine motion into the procedural quandary of transfer orders, where, as here, no countervailing judicial or party interest would be advanced thereby.

2024NO. 94 RECEIVED NYSCEF: 10/08/2024 ANALYSIS \\In the absence of prejudice, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted" (Heller v Louis Provenzano, Inc., 303 AD2d 20, 22 [1st Dept 2003] citing Loomis v Civetta Corinne Const. Corp., 54 NY2d 18 [1981]; see Brennan v City of New York, 99 AD2d 445 [1st 1984].

2004While leave to amend a complaint should be liberally granted (see CPLR 3025 [b]), “a plaintiff does not have the absolute right to amend the complaint by increasing the ad damnum clause at any time, to any amount, subject to defeat only by the defendant coming forward with proof of actual prejudice” (Dolan v Garden City Union Free School Dist., 113 AD2d 781, 784 [1985]; see Brennan v City of New York, 99 AD2d 445, 446 [1984]).

2007Mfg. v Morsel Diesel, Inc. ( 142 AD2d 448 [1988]), “the rule permitting the claim of a newly joined plaintiff to relate back to the earlier claim of a preexisting plaintiff does not necessarily extend beyond those situations . . . where the substance of the claims of the newly joined plaintiff and those of [the] existing plaintiff are virtually identical, where the ad damnum clause is thus the same in the proposed amended complaint as in the original complaint, and where the newly joined plaintiff is closely related to the original plaintiff’ (id. at 458-459; see also Bellini v Gersalle Realty

1995Mfg. v Morse/Diesel, supra, at 458-459): "We emphasize, however, that the rule permitting the claim of a newly joined plaintiff to relate back to the earlier claim of a preexisting plaintiff does not necessarily extend beyond those situations, such as this case, where the substance of the claims of the newly joined plaintiff and those of existing plaintiff are virtually identical, where the ad damnum clause is thus the same in the proposed amended complaint as in the original complaint, and where the newly joined plaintiff is closely related to the original plaintiff.

2016“In the absence of a motion to amend the ad damnum clause, damages [were] limited to the amount sought in the complaint” (17 E. 80th Realty Corp. v 68th Assoc., 173 AD2d 245, 249 [1991]; see Bank of Richmondville v Terra Nova Ins.

2016“In the absence of a motion to amend the ad damnum clause, damages [were] limited to the amount sought in the complaint” (17 E. 80th Realty Corp. v 68th Assoc., 173 AD2d 245, 249 [1991]; see Bank of Richmondville v Terra Nova Ins.

2012Catering Corp., 15 AD2d 775, 775 [1st Dept 1962].) On the other hand, as the Court of Appeals has recognized, “in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted.” (Loomis v Civetta Corinno Constr.

2012Catering Corp., 15 AD2d 775, 775 [1st Dept 1962].) On the other hand, as the Court of Appeals has recognized, “in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted.” (Loomis v Civetta Corinno Constr.

2016It is axiomatic that “ £[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit’ ” (Holst v Liberatore, 105 AD3d 1374, 1374 [2013]; see CPLR 3025 [b]; Meyer v University Neurology, 133 AD3d 1307, 1309 [2015]; McGrath v Town of Irondequoit, 120 AD3d 968 , 969 [2014]).

2016It is axiomatic that “ £[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit’ ” (Holst v Liberatore, 105 AD3d 1374, 1374 [2013]; see CPLR 3025 [b]; Meyer v University Neurology, 133 AD3d 1307, 1309 [2015]; McGrath v Town of Irondequoit, 120 AD3d 968 , 969 [2014]).

2016It is axiomatic that “ £[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit’ ” (Holst v Liberatore, 105 AD3d 1374, 1374 [2013]; see CPLR 3025 [b]; Meyer v University Neurology, 133 AD3d 1307, 1309 [2015]; McGrath v Town of Irondequoit, 120 AD3d 968 , 969 [2014]).

2016It is axiomatic that “ £[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit’ ” (Holst v Liberatore, 105 AD3d 1374, 1374 [2013]; see CPLR 3025 [b]; Meyer v University Neurology, 133 AD3d 1307, 1309 [2015]; McGrath v Town of Irondequoit, 120 AD3d 968 , 969 [2014]).

2014Since plaintiff established by affidavit of merit that her al leged damages were increased beyond Civil Court’s jurisdictional maximum as a result of events that transpired after she had filed her complaint in this matter in Civil Court, her motion to transfer the action to Supreme Court should have been granted (CPLR 325 [b]; see Matter of Miranda v City of New York, 81 AD2d 792, 792 [1st Dept 1981]; Williams v Williams, 23 AD2d 482, 482 [1st Dept 1965]).

2014Since plaintiff established by affidavit of merit that her al leged damages were increased beyond Civil Court’s jurisdictional maximum as a result of events that transpired after she had filed her complaint in this matter in Civil Court, her motion to transfer the action to Supreme Court should have been granted (CPLR 325 [b]; see Matter of Miranda v City of New York, 81 AD2d 792, 792 [1st Dept 1981]; Williams v Williams, 23 AD2d 482, 482 [1st Dept 1965]).

2004While leave to amend a complaint should be liberally granted (see CPLR 3025 [b]), “a plaintiff does not have the absolute right to amend the complaint by increasing the ad damnum clause at any time, to any amount, subject to defeat only by the defendant coming forward with proof of actual prejudice” (Dolan v Garden City Union Free School Dist., 113 AD2d 781, 784 [1985]; see Brennan v City of New York, 99 AD2d 445, 446 [1984]).

1991In view of the foregoing, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs motion to increase the ad damnum clause of her complaint (see, Dolan v Garden City Union Free School Dist., 113 AD2d 781, 785 ).

2003A motion to increase the ad damnum clause based on a claim of increased injuries must be supported by two affidavits: (1) one by the plaintiffs that demonstrates “the merits of the case, the reasons for the delay, and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff [s] and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff[s]” and (2) one by a doctor showing a causal connection between the injuries and the underlying accident and a consistent course

1983The trend in this court has been to stress prejudice to the defendant over mere delay as a basis for denying a motion to increase the ad damnum clause of a complaint (compare Strobel v Dailey, 84 AD2d 748 , and Brewster v City of New York, 78 AD2d 667 , with Posselt v Rosa, 60 AD2d 854 , and London v Moore, 32 AD2d 543 ), and in this case no actual prejudice to the defendants has been demonstrated.

2011Additionally, since the ad damnum clause did not contain a specific amount, but rather sought damages “in excess of $15 million” (cf. Reid v Weir-Metro Ambulance Serv., 191 AD2d 309, 310 [1993]), no amendment was required.

2006Absent a formal motion by defendants to amend the ad damnum clause in their counterclaim, their damages for nonpayment must be limited to the amount sought in the counterclaim, namely $112,749.99 (see Reid v Weir-Metro Ambulance Serv., 191 AD2d 309 [1993]).

2005To demonstrate their entitlement to this relief, the plaintiffs were required to submit evidence showing the merits of the case, the reasons for the delay in asserting the present claims, and that the increase in damages resulted from facts that only recently came to their attention (see Barsoum v Wilson, 255 AD2d 537 [1998]; Lopez v Alexander, 251 AD2d 297 [1998]; Gambino v Swan, 152 AD2d 620 [1989]).

2003A motion to increase the ad damnum clause based on a claim of increased injuries must be supported by two affidavits: (1) one by the plaintiffs that demonstrates “the merits of the case, the reasons for the delay, and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff [s] and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff[s]” and (2) one by a doctor showing a causal connection between the injuries and the underlying accident and a consistent course

2018In the absence of an application to increase the ad damnum clause, the plaintiff's motion to remove the action to the Supreme Court should have been denied ( see id .; Francilion v Epstein , 144 AD2d 633, 633-634 ). [*2]Accordingly, we remit the matter to the Supreme Court, Kings County, to restore the matter to the Civil Court, Kings County.

1991In the absence of an application to increase the ad damnum clause, the Supreme Court’s denial of removal was proper (see, Francilion v Epstein, 144 AD2d 633, 633-634 ; Huston v Rao, 74 AD2d 127, 130, 131 ; 1 Weinstein- Korn-Miller, NY Civ Prac ¶ 325.11; Siegel, NY Prac § 25).