Supreme Court, Appellate Division, Second Department, New York.
SHELDON ELECTRIC CO., INC., Respondent,
v.
ORIENTAL BOULEVARD CORP. et al., Appellants (and a third-party caption).
March 21, 1977.
Action was brought to recover balance due for work, labor and services, and
defendants counterclaimed. The Supreme Court, Special Term, Kings County,
denied defendants' motion for leave to amend ad damnum clause of their
counterclaim, and defendants appealed. The Supreme Court, Appellate Division,
held that trial court abused its discretion in denying defendants' motion for
leave to amend ad damnum clause of their counterclaim, in absence of showing of
prejudice to plaintiff.
Reversed; motion granted.
West Headnotes
[1] Pleading 236(6)
302k236(6) Most Cited Cases
In action to recover balance due for work, labor and services, in which
defendants' bill of particulars specified that full extent of damages being
suffered by them was not yet ascertainable because of continuing nature of
damage, trial court abused its discretion in denying defendants' motion for
leave to amend ad damnum clause of the counterclaim, in absence of showing of
prejudice to plaintiff.
[2] Pleading 233.1
302k233.1 Most Cited Cases
(Formerly 302k233)
Policy of courts is to liberally permit amendments of pleadings unless rights of
party are substantially prejudiced.
**486 Dreyer & Traub, New York City (Charles Feit, Samuel Kirschenbaum and
Brian Michael Seltzer, New York City, of counsel), for appellants.
Fine, Tofel & Saxl, New York City (Joel A. Reiss, New York City, of counsel),
for plaintiff-respondent.
George S. Pickwick, New York City (Joseph D. Ahearn, New York City, of
counsel), for third-party defendant-respondent General Electric Supply Co.
O'Hagan, Reilly & Trecartin, New York City (John E. Trecartin, New York City,
of counsel), for third-party defendant-respondent Reynolds Metals Co.
*887 Before MARTUSCELLO, Acting P.J., and COHALAN, RABIN and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
*886 In an action Inter alia to recover a balance due for work, labor and
services, defendants appeal from an order of the Supreme Court, Kings County,
dated November 9, 1976, which denied their motion for leave to amend the Ad
damnum clause of the counterclaim pleaded in their answer.
Order reversed, with $50 costs and disbursements, payable by plaintiff, and
motion granted. The plaintiff may, if it be so advised, conduct further oral
examination of defendants with respect to the additional items of damage
claimed, which examination shall proceed at such time and place as shall be
fixed in a written notice of not less than 10 days, to be given by plaintiff, or
at such other time and place as the parties may agree. The time within which
such notice must be served is extended until 10 days after entry of the order to
be made hereon.
[1] The Special Term improvidently exercised its discretion in *887 denying
defendants' motion. The damages sustained could result in a recovery in excess
of that originally demanded in the counterclaim. That counterclaim contemplated
a possible increase in the amount of damages claimed; this was reflected in
defendants' bill of particulars, which specified that the full extent of the
damages being suffered by them was not yet ascertainable because of the
continuing nature of the damage.
[2] The policy of our courts is to liberally permit amendments of pleadings
unless the rights of a party are substantially prejudiced (see Mitchell v. City
of New York, 44 A.D.2d 852, 355 N.Y.S.2d 805). No such prejudice appears here.
392 N.Y.S.2d 485, 56 A.D.2d 886
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.SHELDON ELECTRIC CO., INC., Respondent,v.ORIENTAL BOULEVARD CORP. et al., Appellants (and a third-party caption).
March 21, 1977.
Action was brought to recover balance due for work, labor and services, and defendants counterclaimed. The Supreme Court, Special Term, Kings County, denied defendants' motion for leave to amend ad damnum clause of their counterclaim, and defendants appealed. The Supreme Court, Appellate Division, held that trial court abused its discretion in denying defendants' motion for leave to amend ad damnum clause of their counterclaim, in absence of showing of prejudice to plaintiff.
Reversed; motion granted.
West Headnotes
[1] Pleading 236(6)302k236(6) Most Cited Cases
In action to recover balance due for work, labor and services, in which defendants' bill of particulars specified that full extent of damages being suffered by them was not yet ascertainable because of continuing nature of damage, trial court abused its discretion in denying defendants' motion for leave to amend ad damnum clause of the counterclaim, in absence of showing of prejudice to plaintiff.
[2] Pleading 233.1302k233.1 Most Cited Cases (Formerly 302k233)
Policy of courts is to liberally permit amendments of pleadings unless rights of party are substantially prejudiced. **486 Dreyer & Traub, New York City (Charles Feit, Samuel Kirschenbaum and Brian Michael Seltzer, New York City, of counsel), for appellants.
Fine, Tofel & Saxl, New York City (Joel A. Reiss, New York City, of counsel), for plaintiff-respondent.
George S. Pickwick, New York City (Joseph D. Ahearn, New York City, of counsel), for third-party defendant-respondent General Electric Supply Co.
O'Hagan, Reilly & Trecartin, New York City (John E. Trecartin, New York City, of counsel), for third-party defendant-respondent Reynolds Metals Co.
*887 Before MARTUSCELLO, Acting P.J., and COHALAN, RABIN and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
*886 In an action Inter alia to recover a balance due for work, labor and services, defendants appeal from an order of the Supreme Court, Kings County, dated November 9, 1976, which denied their motion for leave to amend the Ad damnum clause of the counterclaim pleaded in their answer.
Order reversed, with $50 costs and disbursements, payable by plaintiff, and motion granted. The plaintiff may, if it be so advised, conduct further oral examination of defendants with respect to the additional items of damage claimed, which examination shall proceed at such time and place as shall be fixed in a written notice of not less than 10 days, to be given by plaintiff, or at such other time and place as the parties may agree. The time within which such notice must be served is extended until 10 days after entry of the order to be made hereon.
[1] The Special Term improvidently exercised its discretion in *887 denying defendants' motion. The damages sustained could result in a recovery in excess of that originally demanded in the counterclaim. That counterclaim contemplated a possible increase in the amount of damages claimed; this was reflected in defendants' bill of particulars, which specified that the full extent of the damages being suffered by them was not yet ascertainable because of the continuing nature of the damage.
[2] The policy of our courts is to liberally permit amendments of pleadings unless the rights of a party are substantially prejudiced (see Mitchell v. City of New York, 44 A.D.2d 852, 355 N.Y.S.2d 805). No such prejudice appears here.
392 N.Y.S.2d 485, 56 A.D.2d 886
END OF DOCUMENT