Zoizack v. Holland Hitch Co.
| Decision Date | 12 July 1977 |
| Parties | Robert ZOIZACK, Estate of Robert Becker, Victor Zoizack and A. R. Gundry, Inc., Respondents, v. The HOLLAND HITCH COMPANY, Brockway Motor Trucks and Mack Trucks, Inc., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Williams, Williams & Volgenau, John M. Anderson, Buffalo, for appellant, Holland Hitch Co.
Brown, Maloney, Gallup, Roach & Busteed, Joseph P. McCarthy, Buffalo, for appellants, Brockway Motor Trucks and Mack Trucks, Inc.
Mattar, Mattar, D'Agostino & Kogler, Joseph R. Klawon, Buffalo, for respondents.
Before MOULE, J. P., and CARDAMONE, DILLON, GOLDMAN and WITMER, JJ.
Plaintiff, A. R. Gundry, Inc., sought to amend its ad damnum clause to allege $15,892.80 damages to its trailer as a result of an accident. In its original complaint it demanded damages of $3,322.90. Defendants, Brockway Motor Trucks, Mack Trucks, Inc., and the Holland Hitch Company, appeal a determination at Special Term which permitted the amendment. We find no abuse of discretion by Special Term.
Appellants claim that plaintiff was guilty of laches and that it waived the right to amend its claim for damages making its motion two years after it served its bill of particulars and seven months after filing a note of issue and statement of readiness. Appellants claim that they are prejudiced because the trailer itself has been disposed of and is no longer available for inspection. Plaintiff contends, and Special Term found, that the lower figure used in plaintiff's "wherefore" clause was an error that was in the pleading as a result of an oversight.
We concur with Special Term's conclusion that defendants had notice of the now proposed amended amount ($15,892.86) when they received plaintiff's bill of particulars which set forth as the "before value" of the trailer "$17,000"; and, in response to the appellants' request for the trailer's "after value" stated .
Leave to amend a pleading "shall be freely given upon such terms as may be just" is the mandate of CPLR 3025(b). Special Term need only satisfy itself that the timing or scope of the requested amendment does not prejudice the rights of another party (3 Weinstein-Korn-Miller, N.Y. Civil Practice P 3025.14). Where the motion merely seeks to reevaluate the amount of damages or to correct an undervaluation an increase in the amount of the ad damnum clause should be permitted (...
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