Opinion
December 23, 1981
Appeal from the Onondaga Supreme Court, Murphy, J.
Present — Simons, J.P., Callahan, Doerr, Denman and Moule, JJ.
Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff's motion to increase the ad damnum clause in his action for personal injury from $25,000 to $150,000 should have been granted. Where a motion to increase the ad damnum clause is made on the eve of trial, plaintiff should submit affidavits showing that the demand in the complaint is inadequate, that the increase is warranted by reason of a recent discovery of additional facts, and that the failure or negligence necessitating the amendment is excusable so far as these facts are within the knowledge of the plaintiff ( Lycett v Niagara Frontier Tr. Systems, 81 A.D.2d 1034; Galarza v Alcoa S.S. Co., 34 A.D.2d 907; Koi v P.S. M. Catering Corp., 15 A.D.2d 775). However, where, as here, the motion to amend is made in advance of trial, prior to the filing of the note of issue and statement of readiness, and defendants do not exhibit prejudice, the increase should be granted where it constitutes a mere re-evaluation of plaintiff's cause of action by substituted counsel, adding no substantive change to his complaint against the defendants ( Luchsinger v County Onondaga, 63 A.D.2d 819; Finn v Crystal Beach Tr. Co. [Appeal No. 2], 55 A.D.2d 1001). Although defendant Ceco claimed it would be prejudiced by the granting of the motion, made approximately one year after the action was commenced and four years after the alleged accident, it made no showing of how such prejudice would result; delay in moving to increase the ad damnum clause is not, per se, an acceptable ground for denying the motion ( Levine v City of New York, 78 A.D.2d 636), especially where defendant has knowledge of the injuries sustained by plaintiff ( Snyder v Wilson, 73 A.D.2d 1061; Allen v Pohl, 63 A.D.2d 1118). The Court of Appeals has recently, in Loomis v Corinno Constr. Corp., ( 54 N.Y.2d 18), held that a Trial Judge may grant a motion for increased damages even after the verdict.