Galarza v. Alcoa S. S. Co.

Decision Date09 June 1970
Citation311 N.Y.S.2d 458,34 A.D.2d 907
PartiesRamon GALARZA, Plaintiff-Respondent, v. ALCOA STEAMSHIP COMPANY, Inc., Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

T. H. Friedman, New York City, for plaintiff-respondent.

W. P. Kain, Jr., New York City, for defendant-appellant.

Before EAGER, J.P., and MARKEWICH, McNALLY and STEUER, JJ.

PER CURIAM.

Judgment entered upon a verdict of a jury unanimously reversed, on the law, on the facts, and in the interests of justice, the judgment vacated, and a new trial directed with costs and disbursements to abide the event.

On the appeal from the judgment for plaintiff in this action brought under the Jones Act (46 U.S.C.A. § 688) to recover for injuries sustained by a seaman in March, 1963, the critical question is whether the pleadings and proof properly support a substantial award. The plaintiff claimed an injury to his back and alleged that his present condition was due to the accident sued for. The defendant contended that his condition was due to a prior accident and to a deteriorating process long antedating the 1963 accident and not affected by it. Faced with this controversy, the plaintiff sought and obtained on the trial an amended pleading based on the contention that the accident caused an exacerbation of a pre-existing condition. The difficulty with the theory embraced in the amendment is that it was originally contended for by no one and the testimony of the plaintiff's doctors did not support it. It is not supported by the evidence. Moreover, it was an unwise exercise of discretion to grant the motion during the trial to increase the ad damnum clause. (See Natale v. Pepsi-Cola Co., 7 A.D.2d 282, 182 N.Y.S.2d 404; Natale v. Great Atlantic & Pacific Tea Co., 8 A.D.2d 781, 186 N.Y.S.2d 795.) Although the permission to increase the ad damnum clause lies within the sound discretion of the trial court, we have heretofore generally held that on such an application plaintiff must produce an affidavit 'showing the merits of the case, the reasons for the delay and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff.' (Koi v. P.S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774.) In addition, the plaintiff should produce a physician's affidavit which demonstrates with some degree of specificity the nature of plaintiff's injuries, their prospective consequences, the resulting disabilities and the causal relationship between such disabilities and the original injury. (Ferrari v. Paramount Plumbing & Heating Co., 20 A.D.2d 878, 248 N.Y.S.2d 515; Tooley v. Howard Johnson's Inc., 29 A.D.2d 930, 289 N.Y.S.2d 128; de los Reyes v. United States Lines Co., 28 A.D.2d 991, 283 N.Y.S.2d 665; Kind v....

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14 cases
  • Osborne v. Miller
    • United States
    • New York Supreme Court — Appellate Division
    • February 10, 1972
    ...come to the attention of the plaintiff and excusing the failure or negligence necessitating the amendment. Galarza v. Alcoa Steamship Company, Inc., 34 A.D.2d 907, 311 N.Y.S.2d 458; Koi v. P.S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774. We have also previously held that an applic......
  • Adamsons v. American Airlines, Inc.
    • United States
    • New York Supreme Court
    • October 27, 1980
    ...from $500,000 to $3,000,000. The court denied this motion (Osborne v. Miller, 38 A.D.2d 298, 328 N.Y.S.2d 769; Galarza v. Alcoa Steamship Company, 34 A.D.2d 907, 311 N.Y.S.2d 458; KOI v. P.S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774; Jimenez v. Seickel and Sons, 22 A.D.2d 643, 2......
  • De Sappio v. Axel Brostrom and Son
    • United States
    • New York Supreme Court
    • March 14, 1978
    ...Co., 29 A.D.2d 774, 287 N.Y.S.2d 116 (1968); London v. Moore, 32 A.D.2d 543, 299 N.Y.S.2d 761 (1969); Galarza v. Alcoa Steamship Co., Inc., 34 A.D.2d 907, 311 N.Y.S.2d 458 (1970); Osborne v. Miller, 38 A.D.2d 298, 300, 328 N.Y.S.2d 769, 771 (1972); Pugh v. Hoffman, 51 A.D.2d 950, 381 N.Y.S.......
  • Ward v. Marino
    • United States
    • New York Supreme Court
    • July 23, 1970
    ...be granted, is that, without complying with the requirements for amendment of a the ad damnum clause, see, e.g., Galarza v. Alcoa Steamship Co., 34 A.D.2d 907, 311 N.Y.S.2d 458, the moving plaintiffs have very substantially increased the amounts demanded over those demanded in the original ......
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