United States District Court, Southern District of New York
September 4, 1990
BETYS GREENSPON, PLAINTIFF
SUPERMARKETS GENERAL CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Plaintiff applies pursuant to Rules 15(a) and (b) of the Federal Rules
of Civil Procedure to amend the ad damnum to reflect a claim for punitive
damages and to amend its complaint to increase its claim for compensatory
damages to 4 million dollars. Plaintiff's present ad damnum is for 1
million dollars in compensatory damages. Such amendments are to be
liberally permitted unless there is prejudice to a party. Foman v.
Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222(1962); Loomis v. Civetta
Construction Corp., 54 N.Y.2d 18, 444 N.Y.S.2d 571, 429 N.E.2d 90(1981).
Plaintiff seeks damages in this three-year old case for an injury
arising out of an accident in a Rickels Home Improvement Center doorway.
Defendant's claims against the third-party defendants — the
manufacturer of the door, a maintenance and service company, and a
distributor of such doors — were dismissed in Federal Rule of Civil
Procedure 56 motions on April 10, 1990, 735 F. Supp. 85.
While the third-party defendants' motions for summary judgment were
pending, the plaintiff filed an affidavit requesting the Court to grant it
summary judgment against defendant based on the materials submitted on
the third-party motions. The Court stated in the April 10, 1990 decision
that it would grant plaintiff summary judgment sua sponte on the issue of
defendant's liability for simple negligence, unless the defendant
submitted papers demonstrating that the plaintiff was not entitled to
such relief within ten days after the entry of the decision. Defendant
did not file any papers contesting this decision of the Court.
In view of this sequence of events, the Court finds that defendant will
be prejudiced if the Court were to grant leave to plaintiff to assert
punitive damages. Plaintiff has made no claim for punitive damages in
either the proposed pretrial order or in its pleadings. Accordingly,
defendant has prepared for trial as if it would not have to call any fact
or expert witness on the mooted liability phase of the trial. If punitive
damages are in issue, such witnesses would have to be called. In
addition, a punitive damages claim might be deemed by the jury to be
validated, due to the fact that, in view of plaintiff's successful motion
for partial summary judgment, the jury will be apprised that the issue of
ordinary negligence is no longer before the jury. Indeed, defendant
affirms that its decision not to file papers in connection with the
Court's sua sponte grant of summary judgment on the liability issue was
based in part on plaintiff's claim being one solely for simple
negligence. Accordingly, the motion to amend the ad damnum to assert a
claim for punitive damages is denied.
The same considerations do not apply to plaintiff's application to
increase its ad damnum to 4 million dollars. In connection with that
aspect of these motions, defendant argues that it will be prejudiced if
the ad damnum clause is raised to 4 million dollars because the carrier
for liability in excess of 1.5 million dollars has never been notified of
the claim in view of plaintiff's 1 million dollar ad damnum. This reason
does not constitute sufficient prejudice to defendant to support a denial
of plaintiff's application. Defendant has always been aware that the
plaintiff was a handicapped person for whom the accident might have
significant consequences. Plaintiff's application to increase the ad
damnum to 4 million dollars for actual damages is granted.
IT IS SO ORDERED.
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