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ROBERT R. WYMAN ET AL. v. ANTHONY F. MORONE (12/18/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.44029 <http://www.versuslaw.com>; 306 N.Y.S.2d 115; 33 A.D.2d 168 December 18, 1969 ROBERT R. WYMAN ET AL., RESPONDENTS,v.ANTHONY F. MORONE, APPELLANT. (ACTION NO. 1.); ETHEL COLEMAN ET AL., RESPONDENTS, V. ANTHONY F. MORONE, APPELLANT, ET AL., DEFENDANTS. (ACTION NO. 2.) Appeals from judgments of the Supreme Court in favor of plaintiffs, entered February 19, 1969 and March 19, 1969 in Albany County upon verdicts rendered at a Trial Term (Edward S. Conway, J.). Gordich & Cohen (Bernard Meyerson of counsel), for appellant. Robert J. Armstrong, Alexander Turchick and James T. Viger for Robert R. Wyman and another, respondents. Guy C. De Lollo (Tabner & Carlson, by John W. Tabner, of counsel), for Ethel Coleman and another, respondents. Staley, Jr., J. Herlihy, P. J., Reynolds and Greenblott, JJ., concur with Staley, Jr., J.; Cooke, J., concurs in the result in Action No. 1, and dissents in Action No. 2 and votes to affirm, in an opinion. Author: Staley


Appeals from judgments of the Supreme Court in favor of plaintiffs, entered February 19, 1969 and March 19, 1969 in Albany County upon verdicts rendered at a Trial Term (Edward S. Conway, J.).

Staley, Jr., J. Herlihy, P. J., Reynolds and Greenblott, JJ., concur with Staley, Jr., J.; Cooke, J., concurs in the result in Action No. 1, and dissents in Action No. 2 and votes to affirm, in an opinion.

Author: Staley

 These are appeals (1) from a judgment of the Supreme Court in favor of plaintiffs Robert R. Wyman and Roberta H. Wyman, entered March 19, 1969 in Albany County, and (2) from a judgment of said court in favor of plaintiffs Ethel Coleman and William Coleman, entered February 19, 1969 in Albany County, upon verdicts rendered at a Trial Term, each judgment being against defendant Morone, the jury having rendered a verdict of no cause of action in favor of defendants Wyman in Action No. 2. The two actions were tried jointly pursuant to order. These actions arose out of a collision between an automobile owned and operated by defendant Morone, and an automobile owned by plaintiff Robert R. Wyman and operated by plaintiff Roberta H. Wyman. The collision occurred on Route 7 in the Town of Colonie on May 14, 1964. Plaintiff Ethel Coleman was a passenger in the Wyman automobile at the time of the collision.

In their complaint plaintiffs Ethel Coleman and William Coleman demanded judgments of $10,000 and $1,000 respectively. The jury, by its verdict, awarded them $12,500 and $1,654 respectively. These plaintiffs then moved for an order permitting amendment conforming their complaint to the evidence pursuant to the provisions of CPLR 3025 (subd. [c]). On February 14, 1969 the court made an order amending the ad damnum clause in their complaint to provide for a demand of judgments in the amount of $12,500 and $1,654 respectively. Judgment was then granted in these amounts. Appellant contends that plaintiffs Coleman cannot recover more than the amount demanded in their complaint, and the court had no power to grant the amendment increasing the demand after verdict.

CPLR 3017 (subd. [a]) authorizes the court to "grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just." The Advisory Committee on Practice and Procedure in its First Report to the Legislature noted CPLR 3017 (subd. [a]) was "intended to allow the widest discretion as to the type of relief"; however, "It is not intended that the court be allowed to grant more monetary relief than demanded." (First Preliminary Report of Advisory Comm. on Practice and Procedure; N. Y. Legis. Doc., 1957, No. 6 [b], p. 68.)

Plaintiffs Coleman contend that the monetary relief granted does not exceed the amount demanded since the court granted an amendment of the ad damnum clause of their complaint pursuant to CPLR 3025 (subd. [c]) which authorizes "pleadings to be amended before or after judgment to conform them to the evidence". Plaintiffs Coleman concede, however, that permission to increase the ad damnum clause lies within the sound discretion of the court.

In Silbert v. Silbert (22 A.D.2d 893, affd. 16 N.Y.2d 564), it was held that there could be no recovery for a sum greater than the amount requested in the prayer for relief, citing Michalowski v. Ey (7 N.Y.2d 71). The court stated (p. 895): "That principle is not affected by section 3017 of the CPLR (cf. Michalowski v. Ey, supra, pp. 75-76). If it be assumed that the court granted the wife's motion, made for the first time at the end of her case, to increase the ad damnum clause, it is our opinion that such a ruling was an improvident exercise of discretion (cf. Gilliam v. S. M. Johnson, Inc., 11 A.D.2d 769)."

In Garden Hill Estates v. Bernstein (24 A.D.2d 512, affd. 17 N.Y.2d 525) it was said: "While the statute (CPLR 3017, subd. [a]) provides that 'the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded,' this provision was not intended to annul or affect the existing cases which forbade a court from granting monetary awards in excess of the amounts demanded by the complaint, unless a proper amendment of the pleadings is first made (First Preliminary Report of the Advisory Comm. on Practice and Procedure; N. Y. Legis. Doc., 1957, No. 6 [b], p. 68 [26.8])."

It thus appears that the established rule that a plaintiff may not recover money damages in excess of the amount of damages demanded in the complaint has not been altered by CPLR 3017. The proviso in Garden Hill Estates v. Bernstein (supra), which would permit such a recovery in the event "a proper amendment of the pleadings is first made" is consistent with the rule. It would appear that a proper amendment to the pleadings would be one which is timely made without an unreasonable or lengthy delay, and upon some merit shown or valid reason advanced. (Greenberg v. Bar Steel Constr. Corp., 27 A.D.2d 651.)

Where, as here, no excuse is offered for the extended delay in moving to amend, the courts have consistently denied the relief sought. (Kind v. Serebreny Corp., 28 A.D.2d 988; Silbert v. Silbert, 22 A.D.2d 893, supra; Gilliam v. S. M. Johnson, Inc., 11 A.D.2d 769; Natale v. Pepsi-Cola Co., 7 A.D.2d 282.)

We, therefore, conclude that it was an improvident exercise of discretion to entertain and grant the motion to increase the amount sued for after the jury had rendered its verdict. As a matter of law the granting of the motion was prejudicial to the rights of the defendant. (Gilliam v. S. M. Johnson, Inc., supra.)

It has also been held that a motion to increase the ad damnum clause will not be granted where the amendment would unfairly prejudice the defendant. (Koi v. P. S. & M. Catering Corp., 15 A.D.2d 775; Cox v. New York Tel. Co., 10 A.D.2d 565; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3017.05.) Defendant's reliance on the amount of damages demanded in the complaint would be seriously affected if such demand was increased after the jury verdict, thus prejudicing him in the manner he chose to present his proof, particularly the medical proof. Prejudice in this regard means that the defendant has been deprived of taking some measures for its defense which it might have taken if the motion to increase the ad damnum clause had been timely made. (Burden v. Cadillac Developers Massapequa Corp., 34 Misc. 2d 37.)

The judgment in favor of plaintiffs Ethel Coleman and William Coleman must, therefore, be reduced to the sum of $10,000 and $1,000 respectively.

We have considered the other questions raised by appellant including the alleged excessiveness of the verdicts granted to plaintiffs Wyman ...


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