Loomis v. Civetta Corinno Const. Corp.

• Decision Date: 22 October 1981
• Citation: 54 N.Y.2d 18,444 N.Y.S.2d 571,429 N.E.2d 90
• Parties: , 429 N.E.2d 90 Julia LOOMIS, Appellant, v. CIVETTA CORINNO CONSTRUCTION CORP., Respondent, et al., Defendants. (And a Third-Party Action.)
• Court: New York Court of Appeals Court of Appeals

Page 571

444 N.Y.S.2d 571

54 N.Y.2d 18, 429 N.E.2d 90

Julia LOOMIS, Appellant, v. CIVETTA CORINNO CONSTRUCTION CORP., Respondent, et al.,

Defendants. (And a Third-Party Action.)

Court of Appeals of New York.

Oct. 22, 1981.

Lawrence N. Chanen and Allen A. Hans, New York City, for appellant.

Robert Markewich and Gary Brown, New York City, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

It has been the rule in New York that a party cannot recover more in a monetary judgment than is requested in his demand for relief (see, e.g., Michalowski v. Ey, 7 N.Y.2d 71, 75, 195 N.Y.S.2d 633, 163 N.E.2d 863). Today we re-examine this principle and conclude that a motion made by a plaintiff to increase the amount of relief requested in the ad damnum clause of the complaint, whether made before or after the verdict, may be granted in the absence of prejudice to the defendant.

Plaintiff, the owner of a town house in Manhattan, alleged in her complaint that defendant Civetta Corinno Construction Corporation entered upon her rear yard in 1976 and removed her patio, a brick wall and certain shrubbery in connection with its construction of a luxury highrise apartment building on the adjacent property. Damages on plaintiff's third cause of action, sounding in trespass, were estimated in the ad damnum clause at $15,000.

In 1978, Special Term granted plaintiff's motion for summary judgment against defendant Civetta on the third cause of action and directed that an assessment of damages be held. Following several adjournments, the hearing to assess damages was held in January, 1980. In the interim period, apparently in response to a request by defendant for an itemization of damages, plaintiff's attorneys, by a writing dated March 19, 1979, detailed the elements of damages, stating, among other things, that total damages for the third cause of action were conservatively estimated at approximately $23,000. Thereafter, and some six months prior to the hearing, defendant's expert personally examined plaintiff's property and received open responses to his inquiries of plaintiff and her attorneys concerning the elements and extent of the damage claimed.

At the outset of the hearing for assessment of damages plaintiff moved to amend the ad damnum clause "to the extent your Honor determines that the proof here today is greater than the ad damnum clause". This motion was denied at that time. Later, and before the hearing concluded, plaintiff renewed her motion to conform the pleadings to the proof. It is claimed that the court's response was unclear, but it is evident that the court reserved decision on the motion and concluded the hearing. Thereafter, Trial Term entered judgment in the amount of $26,118. ^* On appeal the Appellate Division, 78 A.D.2d 845, 433 N.Y.S.2d 156, modified the judgment, on the law, by reducing the award to $15,000, the amount originally claimed, the court concluding that postverdict motions to amend the ad damnum clause are prohibited.

In general, the courts have permitted amendments to the ad damnum clause prior to trial where no prejudice accrues to the opposing party (see, e.g., Zoizack v. Holland Hitch Co., 58 A.D.2d 980, 397 N.Y.S.2d 33; Hrusko v. Public Serv. Coordinated iTransp. Corp., 40 A.D.2d 659, 336 N.Y.S.2d 544). However, even these pretrial motions have encountered some resistance over the years (see, e.g., Peterson v. Spartan Inds., 64 A.D.2d 958, 408 N.Y.S.2d 794; Jimenez v. Seickel & Sons, 22 A.D.2d 643, 252 N.Y.S.2d 891; Koi v. P. S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774). Postverdict motions to amend the ad damnum clause, on the other hand, uniformly have been denied (see Naujokas v. Carey High School, 33 A.D.2d 703, 306 N.Y.S.2d 195; Wyman v. Morone, 33 A.D.2d 168, 306 N.Y.S.2d 115; Silbert v. Silbert, 22 A.D.2d 893, 255 N.Y.S.2d 272; affd 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783). But, these denials have not been immune from criticism (see Wyman v. Morone, supra Naujokas v. Carey High School, 57 Misc.2d 175, 292 N.Y.S.2d 196, revd. 33 A.D.2d 703, 306 N.Y.S.2d 195, supra; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3017:7, p. 116).

Few valid rationales have been advanced in support of the claimed general prohibition of postverdict ad damnum amendments. It has been suggested that one of the reasons behind this rule concerns the problem of a partially insured defendant (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3017:7, p. 117). Under this theory, if the original demand for relief does not exceed the ceiling amount of defendant's coverage, then the defendant is unlikely to retain his own attorney, but will instead permit the attorney furnished by the insurance company to conduct his entire defense. However, if plaintiff seeks an amount in excess of the defendant's insurance coverage, then the defendant might be inclined to retain his own counsel. In such a case, if a postverdict change is made in the ad damnum clause, raising the amount sought above the limits of insurance coverage, it is of course too late for the named defendant to substitute or supplement trial counsel. Also possibly underlying the argument made against postverdict ad damnum amendments is the concern that the specification of a comparatively small sum in the original ad damnum clause might lull the defendant and his counsel into a false sense of security. We conclude today, however, that these difficulties, which may be present in only a small minority of cases, may not continue to serve as a...