Schwartz v. New York City Transit Authority

— In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County (Pizzuto, J.), dated August 16,1983, which, upon granting plaintiffs’ motion for reargument, granted their application pursuant to CPLR 325 (subd [b]) removing the action from the Civil Court of the City of New York to the Supreme Court, Kings County, for a trial on the issue of damages and pursuant to CPLR 3025 (subd [b]) for leave to amend the ad damnum clause of the complaint. Order modified so as to provide that upon reargument, plaintiffs’ motion to transfer the action and to amend the ad damnum clause of the complaint is denied, without prejudice to a further motion to amend the ad damnum clause to an amount within [371] the present monetary jurisdictional limit of the Civil Court of the City of New York. As so modified, order affirmed, without costs or disbursements. The action arises out of a collision which occurred on August 24,1977 between a New York City Transit Authority bus and a vehicle operated by plaintiff Alex Schwartz in which his wife, plaintiff Leanne Schwartz, was a passenger. The action was commenced on or about March 2,1978 in the Civil Court of the City of New York. Apparently the choice of forum was based upon plaintiffs’ belief that their injuries were limited to minimal soft tissue damage. Approximately one year after the action was commenced, plaintiffs came under the care of a Dr. Glanzman, who conducted a reevaluation of their injuries. Among other things, in November, 1979 he referred Leanne Schwartz to a specialist who, based upon an arthrogram, determined that she had a “mild thinning” of the cartilage in her right knee. Approximately seven months thereafter, in June, 1980, plaintiffs moved in the Supreme Court, Kings County, pursuant to CPLR 325 (subd [b]) to remove the action to that court. By order dated August 8, 1980, Special Term denied the motion stating that “[e]ach of the plaintiffs may be sufficiently compensated under the jurisdiction of the court in which the action is presently pending”. No appeal was taken from that order. Nearly three years later, on April 11, 1983, the case came on for trial in the Civil Court. According to plaintiffs, a scheduling problem prevented Dr. Glanzman, who was to testify as to damages, from appearing on the trial date and so a bifurcated trial was ordered. On the second day of the liability portion of the trial the jury returned a verdict finding the defendant Transit Authority 50% at fault. The following day plaintiffs moved orally to sever the case of Leanne Schwartz. Counsel asserted that upon learning of the liability verdict he contacted Dr. Glanzman to arrange for his appearance at the damages phase of the trial. At that time the doctor informed counsel that he had just looked for the first time at the arthrograms and had observed that there was a definite tear in the meniscus of Leanne Schwartz’s right knee. The doctor indicated his view that the specialist who had originally diagnosed her injury in 1979 had misread the arthrograms. After questioning Dr. Glanzman, the court denied the application for a severance, but adjourned the damages phase of the trial until June 6, 1983. Plaintiffs then moved in the Supreme Court, Kings County, to remove the action to that court from the Civil Court and to amend the complaint by increasing the ad damnum clause from $10,000 for each plaintiff to $500,000 for each plaintiff’s personal injuries and $50,000 for loss of service. In support of their [372] application, plaintiffs asserted essentially that based upon their most recent review of their injuries, they could not be adequately compensated within the $10,000 jurisdictional limit of the Civil Court. Defendants argued that plaintiffs had not only failed to offer a legally tenable excuse for the delay in making the application, but had also failed to establish by credible and convincing medical evidence that there has been an aggravation in injuries which would justify a recovery in excess of $10,000. Finally, the defendant Transit Authority argued that it had been prejudiced by plaintiffs’ delay in making the application until after a liability verdict had been rendered. It was asserted that because of the original choice of court the case hád been assigned to a less experienced attorney rather than one with Supreme Court experience. Special Term originally denied the application in all respects, noting, inter alia, that “there has not * * * been a sufficient showing that the demand in the complaint is inadequate”, and further that “[sjhould the evidence at trial indicate otherwise, the trial judge, upon motion, has the option to increase damages even after the verdict”. Upon reargument, however, Special Term, recognizing that regardless of the evidence presented, a Civil Court Judge would be powerless to increase the ad damnum clause of the complaint beyond the monetary jurisdictional limit of that court, granted the plaintiffs’ motion, upon condition that they submit to further physical examinations if requested. While it is true, as plaintiffs argue, that a court may in its discretion grant leave to increase an ad damnum clause even after verdict, absent a showing of prejudice (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18), leave to amend pleadings will not be granted in all cases. Where a case has long been certified as ready for trial or, as here, is in the midst of trial, the court should exercise its discretion with caution (see Shanahan v Shanahan, 92 AD2d 566). In our view, under the circumstances here present, it was an abuse of discretion to remove the case to the Supreme Court and to grant leave to amend the ad damnum clause. Although a delay in moving to amend an ad damnum clause does not in and of itself warrant a denial of the motion (see Loomis v Civetta Corinno Constr. Corp., supra), in this case plaintiffs initially reevaluated their injuries approximately two years after the accident and were rebuffed at that time in their effort to remove the case to the Supreme Court. Rather than take an appeal from that order, they waited nearly three years until the case was literally in the middle of trial before seeking what was in effect a renewal of the prior motion based upon new evidence. However, no explanation whatsoever [373] was offered for their delay in obtaining the new evidence (i.e., a more extensive reevaluation of the injuries) during the intervening period. Further, there is nothing in the record to indicate that the injuries, as presently alleged, were nonexistent at the time of the original motion, have been aggravated since that time, or that for some other reason plaintiffs were prevented from discovering at that time or shortly thereafter the true extent of those injuries (see Foley v Roche, 68 AD2d 558). In light of plaintiffs’ dilatory conduct in making their renewed motion to remove the action to the Supreme Court and the lack of any justifiable excuse, the motion should have been denied (cf. Best v New York City Tr. Auth., 88 AD2d 579). Moreover, we are not convinced on this record that the plaintiffs cannot be adequately compensated for their injuries within the jurisdictional limit of the Civil Court. We would point out in this regard that both the New York State Constitution and the New York City Civil Court Act have been amended to increase the monetary jurisdiction of that court from $10,000 to $25,000 (NY Const, art VI, § 15, as amd Nov. 8, 1983; CCA 202, as amd by L 1984, ch 11, eff Feb. 21, 1984). Weinstein, Brown and Lawrence, JJ., concur.