Walter v. Bauer
| Decision Date | 21 May 1982 |
| Citation | 451 N.Y.S.2d 533,88 A.D.2d 787 |
| Parties | , 4 Ed. Law Rep. 1217 John WALTER, as Father and Natural Guardian of Christopher Walter, an Infant, and John Walter, Individually, Appellants, v. Louise BAUER, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Moot & Sprague by Harry Mooney, Buffalo, for appellants.
Barth, Sullivan & Lancaster by John Sullivan, Buffalo, for respondents Bauer, Our Lady of Pompeii R. C. Church, Soc. of Lancaster and Diocese of Buffalo.
Canale, Madden & Burke, Buffalo, for respondent Charles E. Merrill Pub. Co.
Before SIMONS, J. P., and HANCOCK, CALLAHAN, DENMAN and MOULE, JJ.
Under the circumstances presented here, Special Term should have granted plaintiff's motion to amend the ad damnum clause. "the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after trial, should generally be granted" (Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90; see also Osowicki v. Engert, 85 A.D.2d 778, 445 N.Y.S.2d 320; Quirk v. Lawler, 85 A.D.2d 597, 449 N.Y.S.2d 637). Defendants have not claimed prejudice and prejudice does not result merely from exposure to greater liability (Loomis v. Civetta Corinno Constr. Corp., supra). Nor is delay in bringing the motion generally an acceptable ground for denial (Barker v. Goode, 85 A.D.2d 922, 923, 446 N.Y.S.2d 764). Plaintiff supplied an affidavit from the treating physician attesting to the permanency of the injuries and an affidavit explaining that the original figure was set by counsel after he had just been consulted and had not had an opportunity to investigate the case fully due to the imminent running of the statute of limitations on plaintiff's derivative action.
Special Term properly denied leave to add a cause of action for products liability. Generally, leave to amend a complaint to state an additional cause of action should be liberally granted (CPLR 3025 ) unless the proposed amended pleading is patently devoid of merit (Taylor v. Taylor, 84 A.D.2d 947, 446 N.Y.S.2d 714; see also Probst v. Albert Einstein Med. Center, 82 A.D.2d 739, 440 N.Y.S.2d 2; Sharapata v. Town of Islip, 82 A.D.2d 350, 362, 441 N.Y.S.2d 275). The infant plaintiff sustained an injury in school while conducting a science experiment described in a textbook published by defendant Charles E. Merrill Publishing Company. The experiment, designed to demonstrate pitch, employed...
To continue reading
Request your trial
-
Daniel v. Dow Jones & Co., Inc.
...173 [Sup.Ct.1984]; cf. Walter v. Bauer, 109 Misc.2d 189, 191, 439 N.Y.S.2d 821 [Sup.Ct.1981], mod. on other grounds, 88 A.D.2d 787, 451 N.Y.S.2d 533 [4th Dept.1982].) Technological advances must continually be evaluated and their relation to legal rules determined so that antiquated rules a......
-
Winter v. G.P. Putnam's Sons
...held that the book was not a product for purposes of products liability law), aff'd in part & rev'd in part on other grounds, 88 A.D.2d 787, 451 N.Y.S.2d 533 (1982). One might add: "Would anyone undertake to guide by ideas expressed in words either a discrete group, a nation, or humanity in......
-
Brocklesby v. U.S.
...Walter v. Bauer, 109 Misc.2d 189, 439 N.Y.S.2d 821, 822 (Sup.Ct.1981) (experiment in textbook), modified on other grounds, 88 A.D.2d 787, 451 N.Y.S.2d 533 (1982). See generally McCowan, Liability of the Chartmaker, 47 Ins. Counsel J. 359 (1980). Cardozo, Walter, and Herceg stand for the pro......
-
State v. Long Island Lighting Co.
...96 A.D.2d 926, 466 N.Y.S.2d 369, [2d Dept., 1983].) A pleading which is devoid of merit should not be allowed. (Walter v. Bauer, 88 A.D.2d 787, 451 N.Y.S.2d 533 [4th Dept., 1982]; Taylor v. Taylor, 84 A.D.2d 947, 446 N.Y.S.2d 714 [4th Dept.1981]; Boccio v. Aspin Trucking Corp., 93 A.D.2d 98......
-
How the Fifty States View Electronic Data as a “Product”
...(“plaintiff was not injured by use of the book for the purpose for which it was designed, i.e., to be read”), aff’d in pertinent part, 451 N.Y.S.2d 533 (N.Y. App. Div. 1982); Suarez v. Underwood, 426 N.Y.S.2d 208, 210 (N.Y. Sup. 1980) (“Nor should the onerous burden be placed upon newspaper......