De Filippo v. City of Schenectady

Taylor, J. This action in which plaintiff wife sought to recover damages in the sum of $15,000 for personal injuries was instituted originally in the Supreme Court. Upon her consent the cause was removed to the County Court of Schenectady County and her demands for judgment against defendants were reduced to $6,000 to bring them within its then monetary jurisdiction. (Civ, Prac. Act, § 67, subd. 3.) Effective September 1, 1963 the jurisdiction of that court, among others, was extended to an action wherein the amount demanded in the complaint did not exceed $10,000 exclusive of interest and costs. (N. Y. Const., art. VI, § 11; Judiciary Law, § 190, subd. 5.) Shortly thereafter upon uncontroverted allegations that an enlargement of the formal estimate of her damages would not result in prejudice to defendants, she sought leave to increase the ad damnum clauses of her pleading to the maximum amount permitted by the newly enacted statute. She has appealed from the order denying her motion. In our opinion the court’s discretion should have been exercised, under the circumstances of this case, in favor of the application. (Rasa v. City of New York [Appeal No. 2], 277 App. Div. 780; Lane v. Sochacki, 279 App. Div. 595; Matter of Hausman [Howard Fuel Corp.], 280 App. Div. 942; Nathanson v. Lutheran Hosp. Assn., 3 Misc 2d 540, 542; CPLR 3025, subd. [b]; 3 Weinstein-ICorn-Miller, N. Y. Civ. Prac., pp. 30-441, 30-442, 30-448, 30-449.) Order reversed, on the law and the facts, with $25 costs; motion granted, without costs. Settle order. Gibson, P. J,, Herlihy, Reynolds and Aulisi, JJ., concur.