Osborne v. Miller

• Decision Date: 10 February 1972
• Citation: 38 A.D.2d 298,328 N.Y.S.2d 769
• Parties: Kurt J. OSBORNE et al., Plaintiffs-Respondents, v. Benjamin MILLER, Defendant-Appellant, and General Motors Corporation, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 769

328 N.Y.S.2d 769

38 A.D.2d 298

Kurt J. OSBORNE et al., Plaintiffs-Respondents, v. Benjamin MILLER, Defendant-Appellant, and General Motors Corporation, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 10, 1972.

Bernard Botein, New York City, of counsel (Benjamin H. Siff and Thomas R. Newman, New York City, with him on the brief; Tropp, Goldfinger & Berson, New York City, attorneys), for defendant-appellant Benjamin Miller.

Jacob D. Fuchsberg, New York City, of counsel (Donald Miller and Murray L. Lewis, New York City, with him on the brief; Fuchsberg & Fuchsberg, New York City, attorneys), for plaintiffs-respondents Osborne.

Roy L. Reardon, New York City, of counsel (Ross L. Malone and James P. Barrett, New York City, with him on the brief; Simpson, Thacher & Bartlett, New York City, attorneys), for defendant-respondent General Motors Corp.

Jacob Goodman, New Rochelle, of counsel (Fanelli, Otto & Bosco, New Rochelle, attorneys), for plaintiff-respondent Harry R. Wheeler.

Before STEVENS, P.J., and McGIVERN, KUPFERMAN, McNALLY and MACKEN, JJ.

PER CURIAM.

In this personal injury action, defendant Miller appeals from a judgment aggregating $845,628.22 entered in favor of plaintiffs against him after a split jury trial.

Defendant's appeal also brings up for review an intermediate order which granted the Osborne plaintiffs' motion, after liability issues had been tried, to amend their complaint to increase an ad damnum clause from $350,000.00 to $1,000,000.00.

We take up first the appeal from the intermediate order.

In our opinion, it was an unwise exercise of discretion to grant the motion to increase the ad damnum clause. Accordingly, we reverse the order on the law, facts and exercise of discretion and deny the application. We have heretofore held in order to increase the ad damnum clause, the plaintiff must produce an affidavit showing the reasons for the delay in making the application and the fact the increase is warranted by reason of information which has recently 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 application of this nature should not be granted where the plaintiff is chargeable with inordinate laches or where the amount would unfairly prejudice the defendant. Galarza and Koi, supra.

The affidavit to amend the ad damnum clause was based on the affidavit of counsel. There was no affidavit from the plaintiff. There was no claim that the injuries suffered had developed into disability not known when the complaint was served.

The accident occurred August 8, 1965. The action was commenced in November 1965. The bill of particulars was served in February 1966. The extent of the injuries to Miss Osborne was clearly known to her attorneys at that time. Subsequently there were five pre-trial conferences. The motion to increase the ad damnum clause was not made until the eve of trial on or about May 7, 1971 and was not granted until June 4, 1971 after the jury had brought in a verdict in favor of plaintiffs on the grounds of liability. (See Natale v. Pepsi-Cola Company, 7 A.D.2d 282, 284--285, 182 N.Y.S.2d 404, 406--408.) This relief was prejudicial to the defendant since it permitted plaintiff to argue for and recover an award far in excess of what the proof warrants.

Aside from these considerations we hold the verdict to be excessive. This young woman undoubtedly suffered and was severely injured in this accident. She has undergone pain and suffering and has sutained permanent impairment in the use of her right hand and arm and she walks with a limp as a result of permanent injury to her right leg. We do not disregard the courageous effort she made in overcoming these disabilities sufficiently to resume her studies and earn both a bachelor's degree and a master's degree to be qualified and physically able to practice the profession of teaching; to be able to travel about the world alone and take up residence in a foreign land where she now lives. Photographs in evidence show the remarkable recovery that has been brought about. There are several factors that may well have entered into permitting the verdict to become excessive. After plaintiff obtained her master's degree, she journeyed to Europe, first to Germany and then to Majorca. The plaintiff decided to settle in Majorca where she now lives in her own apartment. The plaintiff never applied for a permanent teaching position anywhere in the United States. She was never refused such a position. After arriving in Majorca, plaintiff then took a position in an international school on the basis of a foreign pay scale completely out of line with the customary standards in the United States. In this position she was able on the trial to project her alleged loss of earnings. Over objection she was permitted to establish the starting salary of a teacher with no experience in New Rochelle. She was permitted to show subsequent raises, the fringe benefits received by members of the New Rochelle School System, the wage scale after thirteen years tenure. This with no proof that she ever sought employment as a teacher in New Rochelle or that she was refused employment by reason of her injuries. Another factor which suggests itself is the court's failure to answer the jury's inquiry as to whether or not the award was subject to taxes. The size of the verdict may well reflect the jury's notion that the award was taxable and that she received a greater allowance to assure that she receive a net award. See Towli v. Ford Motor Co., 30 A.D.2d 319, 292 N.Y.S.2d 8; Domeracki v. Humble Oil, 3 Cir., 443 F.2d 1245; Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42; 2 Harper and James, Law of Torts, Sec. 25.12, 63 A.L.R.2d 1393, also supplement with later case service p. 612 and p. 199.

In evaluating the excessiveness of the award, we have considered its present valuation, the final income produced thereby and we have reached the conclusion that the verdict as reduced is in a sum that will reasonably compensate the plaintiff for her sufferings and incapacity. We have also taken into account the usual income produced by such a sum of money. Zaninovich v. American Airlines, 26 A.D.2d 155, 159 to 163, 271 N.Y.S.2d 866, 871 to 875.

The intermediate order entered June 4, 1971, granting the motion of the plaintiffs Osborne to amend their bill of particulars and to amend their complaint to increase the Ad damnum clause therein from $350,000 to the sum of $1,000,000 should be reversed, on the law, on the facts and in the exercise of discretion, without costs, and the application denied.

The judgment entered July 22, 1971, should be modified, on the law, on the facts and in the exercise of discretion, to the extent of granting a new trial as to plaintiff Carroll June Osborne against defendant-appellant Benjamin Miller, with costs to abide the event, unless plaintiff Carroll June Osborne, within twenty days of service upon her by the defendant-appellant Benjamin Miller of a copy of the order entered herein, stipulates to accept $300,000 in lieu of the $800,000 awarded her by verdict, in which event the judgment in favor of plaintiff Carroll June Osborne as so reduced and amended and the judgment in all other respects should be affirmed, without costs and without disbursements.

Order, Supreme Court, New York County, entered on June 4, 1971, so far as appealed from, reversed, on the law, on the facts and in the exercise of discretion, without costs and without disbursements, and the motion of plaintiffs Osborne to amend their bill of particulars and complaint denied.

Judgment, Supreme Court, New York County, entered on July 22, 1971, so far as appealed from, modified, on the law, on the facts and in the exercise of discretion, to the extent of granting a new trial as to plaintiff Carroll June Osborne against defendant-appellant Miller, with costs to abide the event, unless plaintiff Carroll June Osborne, within twenty days of service upon her by the defendant appellant Benjamin Miller of a copy of the order entered hereon, with notice of entry thereof, stipulates to accept $300,000 in lieu of the $800,000 awarded her by verdict, in which event the judgment in favor of plaintiff Carroll June Osborne as so reduced and amended and the judgment in all other respects is affirmed, without costs and without disbursements.

All concur except McGIVERN and KUPFERMAN, JJ. who dissent in an opinion by McGIVERN, J.

McGIVERN, Justice (dissenting).

The majority have in effect, by a Hobson's choice, reduced the verdict of the jury by a half a million ($500,000) dollars. Unless, she chooses not to stipulate.

The sole issue discussed as error warranting reversal is the granting of a motion by plaintiff's counsel to amend the Ad damnum clause so as to escalate the demand of the plaintiff, Carroll Osborne, from $300,000 to $1,000,000. The majority would reduce the verdict to the original demand. Liability is unchallenged.

But, the granting of such a motion is indisputably within the sound discretion of the trial court. So, the only question before us is: Did the Trial Judge improperly exercise or abuse his discretion? I fail to see how he did. Indeed, I respectfully submit if there by any abuse, it is that enacted by the majority herein. Nor do I believe his granting this...