Demko v. Ventrone

In an action, inter alia, to recover damages for wrongful eviction, originally commenced as a special proceeding to recover possession of real property, the appeal is from an order of the Supreme Court, Richmond County (Kuffner, J.), dated February 6, 1986, which granted the plaintiff’s motion to amend the ad damnum clause to increase it from $3,000 actual damages plus exemplary damages of treble that amount to $200,000 actual damages plus exemplary damages of treble that amount, and to remove the action then pending in the Civil Court of the City of New York, Richmond County, to the Supreme Court, Richmond County. The appeal brings up for review so much of an order of the same court, dated April 16, 1986, as, upon reargument, adhered to the original determination (see, CPLR 5517). [834] Ordered that the appeal from the order dated February 6, 1986 is dismissed, as that order was superseded by the order dated April 16, 1986, made upon reargument; and it is further, Ordered that the order dated April 16, 1986 is affirmed insofar as reviewed; and it is further, Ordered that the plaintiff is awarded one bill of costs. Under the circumstances of this case, it was an appropriate exercise of the court’s discretion to permit the amendment of the ad damnum clause (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, rearg denied 55 NY2d 801; Ravenal, Inc. v Gross, 90 AD2d 760). Furthermore, the plaintiff may be entitled to punitive damages. Mangano, J. P., Rubin, Kooper and Harwood, JJ., concur.