Wednesday, November 14, 2012

Leave to amend to increase the ad damnum clause.

Practice point: In applying for to leave to amend the complaint to increase the ad damnum clause, pursuant to CPLR 3025[b], a petitioner is required to submit a physician's affirmation (1) showing a causal connection between her condition and the accident, and (2) specifying the claimed change in her condition, including any injuries that had not been previously considered, or the extent to which the condition had worsened.

Student note: Here, the application was denied because petitioner submitted a physician's affirmation which failed to establish that the increased injuries to her lower back which required surgery were causally related to the subject motor vehicle accident, as it failed to account for the fact that the petitioner had claimed to have injured her lower back in accidents that had occurred both prior and subsequent to the subject motor vehicle accident.

Case: Matter of Sealy v. Morris, NY Slip Op 07116 (2d Dept. 2012).

Tomorrow's issue: Suing the Transit Authority.