De Sappio v. Axel Brostrom and Son
Decision Date | 14 March 1978 |
Citation | 93 Misc.2d 623,403 N.Y.S.2d 668 |
Court | New York Supreme Court |
Parties | Frank DE SAPPIO, Plaintiff, v. AXEL BROSTROM & SON and Swedish America Line, Defendants. SWEDISH AMERICA LINE, Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third-Party Defendant. |
Kenneth Heller, New York City, for plaintiff.
Haight, Gardner, Poor & Havens, New York City, for Axel Brostrom & Son and Swedish America Line.
Alexander, Ash, Schwartz & Cohen, New York City, for Intern. Terminal Operating Co., Inc.
Plaintiff, a longshoreman, brought this action for personal injuries allegedly resulting from negligence and unseaworthiness against the owners of a ship on which he was working when injured in 1970. Defendants then impleaded plaintiff's employer. In 1973, plaintiff successfully moved to increase the ad damnum from $100,000 to a quarter of a million dollars on each cause of action, and now seeks to further amend to $1,000,000 based on five annual increases in the longshoremen's minimum wage since 1973. The shipowners and the employer oppose the motion on the ground that plaintiff has shown no greater injury then that originally claimed. The employer further contends that, had plaintiff done so, he could not amend as it would prejudice all defendants to permit an amendment at this point absent a medical affidavit and an affidavit of merits.
The cases cited by the employer in support of this position deal with instances where a plaintiff after several years moved to amend the bill of particulars to allege new injuries, and to increase the ad damnum without such supporting affidavits, or to do so after trial. Natale v. Pepsi Cola Co., 7 A.D.2d 282, 285, 182 N.Y.S.2d 404, 407-408 (1959); Handschu v. Weltz, 13 A.D.2d 679, 213 N.Y.S.2d 795 (1961); Koi v. P. S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774 (1962); Ferrari v. Paramount Plumbing, 20 A.D.2d 878, 248 N.Y.S.2d 515 (1964); Jimenez v. Seickel & Sons, 22 A.D.2d 643, 252 N.Y.S.2d 891 (1964); Maasch v. Edward Corning 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.2d 488 (1976). This, however, is not the situation here. Plaintiff claims no new injuries. The basis for his motion is that, had he not been disabled by the accident, plaintiff would have been paid a higher wage after 1973 than longshoremen earned at the time of the last amendment. There has been no showing that defendants or third-party defendant would be prejudiced by such an amendment, and they do not claim they were unaware of the minimum wage increases. The real basis for their opposition is that granting the motion would let "the jury hear mention of a million dollars" (third-party defendant's memorandum, p. 2; 4, 5). The only remaining question is, therefore, whether, in a court of general jurisdictio a request for a large sum of money would, if granted, be sufficiently prejudicial to warrant denial of a motion to increase the amount demanded in the ad damnum.
The purpose of the ad damnum clause in a complaint is to comply with the requirements of due process by giving an adverse party notice of the claim made against him and the nature of the relief requested; and CPLR 3017(a) requires that such "a demand for the relief to which the pleader deems himself entitled" be contained in a complaint. There is no statutory requirement that, where general damages are demanded, the amount to which the pleader deems himself entitled be specified. Nor is the case law unduly restrictive in this regard.
It has long been held that plaintiffs who have pleaded the wrong measure of damages, and therefore demanded an amount to which they were not entitled, could still recover the amount to which they were entitled under the correct measure of damages as long as facts from which some damages could be properly inferred had been alleged, Colrick v. Swinburne, 105 N.Y. 503, 507, 12 N.E. 427, 428 (1887); but where special damages were claimed, and in wrongful death cases, some amount had to be specified. Winter v. American Aniline Products, Inc., 236 N.Y. 199, 204, 140 N.E. 561, 562 (1923); Lurie v. New Amsterdam Cas. Co., 270 N.Y. 379, 382, 1 N.E.2d 472, 473 (1936); A. S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 383, 165 N.Y.S.2d 475, 487, 144 N.E.2d 371, 380 (1957); Ketcham v. Van Dusen, 11 App.Div. 332, 336, 42 N.Y.S. 1112, 1114-1115 (1896); Williams v. Connors, 53 App.Div. 599, 601, 66 N.Y.S. 11, 12 (1900); Leather Development Corp. v. Dun & Bradstreet, Inc., 15 A.D.2d 761, 224 N.Y.S.2d 513 (1962), aff'd 12 N.Y.2d 909, 237 N.Y.S.2d 1007, 188 N.E.2d 270 (1963). This, however, was not the case where general damages were demanded, as the Supreme Court, General Term, explained nearly a century ago:
In common-law actions, founded upon wrongful or negligent acts of defendants, the damages are the result or consequence of the cause of action out of or from which they arise; and, while they may be essential to recovery, they do not necessarily constitute any part of the cause of action (i. e., the negligent act) which produces them. And, therefore, when a complaint alleges such cause of action, from which damages may and presumptively do flow, the addition of the demand of judgment for a sum of money as the consequence of such cause of action is all that is necessarily required to sustain the pleading.
Kenney v. New York C & H RRR Co., 49 Hun 535, 537 (1888). And, more recently, in Matter of Silvestris v. Silvestris, 24 A.D.2d 247, 250, 265 N.Y.S.2d 173, 178 (1965), the First Department has stated that
If, however, an amount is specified in the demand, a plaintiff's recovery will be limited to the amount demanded, Curtiss v. Lawrence, 17 Johns 111 (1819) 1; Michalowski v. Ey, 7 N.Y.2d 71, 75, 195 N.Y.S.2d 633, 635, 163 N.E.2d 863, 865 (1959), and, unlike ...
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