Opinion
April 21, 1981
Order of the Supreme Court, New York County, entered August 18, 1980 which granted plaintiff-respondent's motion to increase the ad damnum clause of the complaint from $10,000 to $2,000,000 and to remove the action from the Civil Court to the Supreme Court, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the motion denied, without costs and without disbursements. In this motion, made three years after commencement of the lawsuit, plaintiff seeks to increase his claim for damages by a factor of 200 times, i.e., from $10,000 to $2,000,000. Although such a motion is addressed to the discretion of the court and leave to amend should be freely given (CPLR 3025, subd [b]), there are certain requirements which must be met (Koi v P.S. M. Catering Corp., 15 A.D.2d 775). Among them is the necessity to make a factual showing that such increase is warranted. There should be "a physician's affidavit which demonstrates with some degree of specificity the nature of plaintiff's injuries, their prospective consequences, the resulting disabilities and the causal relationship between such disabilities and the original injury" (Galarza v Alcoa S.S. Co., 34 A.D.2d 907). We find the affidavit of the physician submitted in support of the motion to be insufficient and speculative. His opinion that plaintiff will possibly be required to submit to surgery does not appear to be based upon X rays or other tests. This physician saw plaintiff on only one occasion, and then only in the role of a physician engaged to testify as an expert. We note the absence of any affidavit from a treating physician. In these circumstances, we find that it was improper for Special Term to have exercised its discretion in plaintiff's favor.
Concur — Kupferman, J.P., Birns, Sullivan, Silverman and Bloom, JJ.