Opinion
January 14, 1977
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Mahoney, Goldman and Witmer, JJ.
Order unanimously affirmed, without costs. Memorandum: Permission to increase the ad damnum clause in an action for damages for personal injuries lies within the sound discretion of the court (Cox v New York Tel. Co., 10 A.D.2d 565; cf. Soulier v Harrison, 21 A.D.2d 725). In determining sound discretion, prejudice to the defendant is a consideration (Boehm v Ekco Prods. Co., 47 A.D.2d 807; Matter of McNally v Mosbacher, 36 A.D.2d 522; Ryan v Collins, 33 A.D.2d 966). Where knowledge is had by defendant of the nature of injuries sustained by plaintiff, delay alone in seeking amendatory ad damnum relief has been held not to constitute prejudice sufficient to warrant denial (Yerdon v Baldwinsville Academy, 39 A.D.2d 824; Smith v University of Rochester Med. Center, 32 A.D.2d 736). Here, defendant was apprised of the nature of plaintiff's injuries upon the service of her initial bill of particulars and the subsequently served further bill of particulars. The granted increase in the ad damnum clause constitutes a mere re-evaluation of plaintiff's cause of action by substituted counsel, adding no substantive change to her complaint against the defendant (see Koupash v Grand Union Co., 34 A.D.2d 695; Bird v Board of Educ., 29 A.D.2d 812; Soulier v Harrison, 21 A.D.2d 725, supra; Natale v Great Atlantic Pacific Tea Co., 8 A.D.2d 781). On this record we find no reason to disturb Special Term's order.