Finn v. Crystal Beach Transit Co.

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 AD2d 565; cf. Soulier v Harrison, 21 AD2d 725). In determining sound discretion, prejudice to the defendant is a consideration (Boehm v Ekco Prods. Co., 47 AD2d 807; Matter of McNally v Mosbacher, 36 AD2d 522; Ryan v Collins, 33 AD2d 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 AD2d 824; Smith v University of Rochester Med. Center, 32 AD2d 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 AD2d 695; Bird v Board of Educ., 29 AD2d 812; Soulier v Harrison, 21 AD2d 725, supra; Natale v Great Atlantic & Pacific Tea Co., 8 AD2d 781). On this record we find no reason to disturb Special Term’s order. (Appeal from order of Erie Supreme Court — ad damnum clause.) Present — Marsh, P. J., Moule, Mahoney, Goldman and Witmer, JJ.