Schwartz v. New York City Transit Authority

Lazer, J. P.,

dissents and votes to affirm the order appealed from, with the following memorandum: I cannot agree that Special Term abused its discretion when it ordered this case removed to the Supreme Court and permitted plaintiffs to amend the ad damnum clause of their complaint. In affidavits supporting the motion for that relief, plaintiff Leanne Schwartz and her physician asserted that it is now known that her injuries were more serious than they were believed to be when the action was commenced in 1978 and that the delay in moving for proper relief stemmed from an erroneous diagnosis made by another physician. While it was originally thought that Mrs. Schwartz had suffered only minimal soft tissue injuries, her physician now avers that she sustained a tear of the meniscus of the right knee, a permanent injury which causes her much pain and discomfort. In a report annexed to the physician’s affidavit, a radiologist concurs in the diagnosis of torn meniscus. Mrs. Schwartz alleges that she suffers severe pain in the right knee and has “buckling and instability”, locking of the knee and pain in the left shoulder. A motion to amend the ad damnum clause is addressed to the sound discretion of the court and should generally be granted in the absence of prejudice to the defendant (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18). Prejudice does not derive, of course, from mere exposure to greater liability, for defendants must establish that they have been hindered *374in the preparation of their case or prevented from taking measures in support of their position (Loomis v Civetta Corinno Constr. Corp., supra, p 23; Bachtinger v Yee, 85 AD2d 705). Here, the defendants’ alleged assignment of a less experienced attorney to try the case in the Civil Court has not been shown to have resulted in prejudice; indeed, the attorney succeeded in achieving a 50-50 apportionment of liability. Nor is there any claim that defendants restricted their investigative efforts on the basis of the low ad damnum (Fahy v Hertz Corp., 92 AD2d 581; Maddox v City of New York, 90 AD2d 535). Absent prejudice, the delay in bringing the motion is not a ground for its denial (Bachtinger v Yee, supra; Hillenbrand v 3801 Review Place, 72 AD2d 554).

I conclude, then, that the removal of the case to the Supreme Court was amply supported by the uncontradicted evidentiary proof that Mrs. Schwartz’s condition is more serious than was originally anticipated or diagnosed (see Gottesman v Beck, 88 AD2d 632; Robbins v Sperlazza, 72 AD2d 558) and she should not be penalized for this underevaluation (see Matter of Miranda v City of New York, 81 AD2d 792). Although the majority seems to draw solace from the fact that the monetary jurisdiction of the Civil Court has recently been increased from $10,000 to $25,000 (L 1984, ch 11), that sum seems hardly adequate to compensate for a torn meniscus that causes present pain and instability and which will plague Mrs. Schwartz permanently. There certainly has been a prima facie showing that plaintiffs’ recovery may exceed the Civil Court’s jurisdiction (see Huston v Rao, 74 AD2d 127; Matter of Moss v Buccola, 40 AD2d 994).