Davis v. Sprain Construction Co. 49 A.D.2d 842

Order, Supreme Court, Bronx County, entered June 13,1975, granting plaintiff’s motion to increase the ad damnum from $60,000 to $500,000, unanimously reversed, on the law and in the exercise of discretion, and the motion denied, without costs or disbursements. Order, Supreme Court, Bronx County, entered June 17, 1975, granting defendant’s motion for a further physical examination, unanimously reversed, on the law and in the exercise of discretion, without costs and without disbursements, and the order vacated as academic. Plaintiff, a wirelather, was in an accident on November 6,1968 and brought this action in March, 1969 to recover damages for the injuries incurred. The motion to increase the ad damnum clause was made in 1975. The reason advanced for the increase was not an aggravation of injuries but rather the inability of the plaintiff to become a fireman employed by the New York City Fire Department. It is urged that the loss of potential pay as a fireman during plaintiff’s working lifetime warrants the increase sought. Noteworthy is the fact that plaintiff first applied for the position in 1970, well after his 1968 accident. We find that the granting of the increase was an abuse of discretion. Furthermore, we have reversed and vacated the order of June 17 granting a physical examination. Defendants sought the additional physical examination and EBT solely on the basis of the substantial increase in the ad damnum. Since we have restored the original ad damnum clause, the need for further examinations has been rendered academic. Concur—Kupferman, J. P., Lupiano, Tilzer, Capozzoli and Lane, JJ.