Hillenbrand v. 3801 Review Place, Inc.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County, entered December 6, 1978, which denied their motion to increase the ad damnum clause of the complaint. Order reversed, with one bill of $50 costs and disbursements payable jointly by respondents and motion granted. Since plaintiffs’ motion to amend is based solely upon an update of original injuries, compliance with the affidavit requirement of London v Moore ( 32 AD2d 543 ) was unnecessary (see Church v Catholic Med. Center of Brooklyn & Queens, 52 AD2d 898, 899 ). Hence, it was an abuse of discretion for Special Term to deny the motion on the ground that the affidavit by plaintiffs’ physician failed to establish a causal link between the alleged injury and the accident. Additionally the delay in making the instant motion is not per se an acceptable ground for the denial, in view of the fact that respondents have failed to demonstrate how they would suffer actual prejudice at trial (see Calautti v National Transp. Co., 10 AD2d 955 ; see, also, Finn v Crystal Beach Tr. Co., 55 AD2d 1001 ). Damiani, J. P., O’Connor, Lazer and Margett, JJ., concur.