Valentin Saldivar v I.J. White Corporation

Saldivar v I.J. White Corp. 2006 NY Slip Op 04997 [30 AD3d 577] Decided on June 20, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
STEPHEN G. CRANE, J.P.
REINALDO E. RIVERA
STEVEN W. FISHER
MARK C. DILLON, JJ.
2005-06578 DECISION & ORDER

[*1]Valentin Saldivar, et al., appellants,

v

I.J. White Corporation, et al., respondents (and a third-party action). (Index No. 14546/01)




Noel W. Hauser, New York, N.Y., for appellants.
Cohen, Kuhn & Associates, New York, N.Y. (Leonard A.
Robusto of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated March 15, 2005, as denied that branch of their motion which was for leave to increase the ad damnum clause from the sum of $1 million to the sum of $4 million with respect to the injured plaintiff.

ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and that branch of the motion which was for leave to increase the ad damnum clause from the sum of $1 million to the sum of $4 million with respect to the injured plaintiff is granted.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was to increase the ad damnum clause inasmuch as the proposed amendment was not palpably insufficient or patently devoid of merit (see CPLR 3025[c]) and there was no showing of prejudice to the defendants (see McCallister v Kapadia, 179 AD2d 802; Esposito v Time Motor Sales, 88 AD2d 902; see also Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23; Moore v Allen, 261 AD2d 455; Quirk v Lawler, 85 AD2d 597). [*2]
CRANE, J.P., RIVERA, FISHER and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court