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Barner v. Shook

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 13, 1976
51 A.D.2d 855 (N.Y. App. Div. 1976)

Opinion

February 13, 1976

Appeal from the Onondaga Supreme Court.

Present — Marsh, P.J., Moule, Mahoney, Dillon and Witmer, JJ.


Order unanimously affirmed, with costs. Memorandum: In this personal injuries action defendant appeals from an order of Special Term which granted plaintiff's motion to increase the ad damnum clause from the sum of $75,000 to $250,000. A bill of particulars was served by plaintiff on January 12, 1973; a supplemental bill was served on December 18, 1973 and a further bill was served on February 27, 1975, all of them containing language which, fairly construed, alerted the defendant to the likelihood of a demand for increased damages. CPLR 3025 (subd [b]) provides: "(b) * * * A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court * * * Leave shall be freely given upon such terms as may be just" (emphasis supplied). Because of the contents of the bill of particulars and the fact that this motion was made approximately one month before the date of trial, together with the failure of the defendant to show any prejudice, Special Term did not abuse its discretion in granting the motion. (See Yerdon v Baldwinsville Academy, 39 A.D.2d 824; Kerlin v Green, 36 A.D.2d 892; Smith v University of Rochester Med. Center, 32 A.D.2d 736.)


Summaries of

Barner v. Shook

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 13, 1976
51 A.D.2d 855 (N.Y. App. Div. 1976)
Case details for

Barner v. Shook

Case Details

Full title:RICHARD L. BARNER, Respondent v. GERRY R. SHOOK, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 13, 1976

Citations

51 A.D.2d 855 (N.Y. App. Div. 1976)

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