| Commissioners of State Ins. Fund v Service Unlimited, USA,Inc. |
| 2008 NY Slip Op 04049 [50 AD3d 1085] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Commissioners of State Insurance Fund,Respondent, v Service Unlimited, USA, Inc., Appellant. |
—[*1] Abrams Garfinkel Margolis Bergson, LLP, Jericho, N.Y. (Arthur Fisher of counsel), forrespondent.
In an action to recover unpaid premiums for a workers' compensation insurance policy, thedefendant appeals, as limited by its brief, from so much of an order of the Supreme Court,Westchester County (Nicolai, J.), entered March 21, 2007, as granted the plaintiff's motion forleave to amend the complaint to increase the ad damnum clause, and denied that branch of itscross motion which was to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted the plaintiff's motion for leave to amend the complaintto increase the ad damnum clause. Pursuant to CPLR 3025 (b), a court shall "freely" grant a partyleave to amend a pleading "upon such terms as may be just." In general, motions for leave toamend a pleading should be granted unless the proposed amendment is "palpably insufficient orpatently devoid of merit, or where the delay in seeking the amendment would cause prejudice orsurprise" (Lucido v Mancuso, 49AD3d 220, 229 [2008]; see TratarosConstr., Inc. v New York City School Constr. Auth., 46 AD3d 874 [2007]; G.K. Alan Assoc., Inc. v Lazzari, 44AD3d 95, 99 [2007]). More specifically, a motion for leave to amend the complaint toincrease the ad damnum clause made prior to trial is permissible where there is no prejudice tothe opposing party (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981];Matter of Cohn, 46 AD3d 680,681 [2007]). Here, the proposed amendment is not palpably insufficient or patently devoid ofmerit, and the defendant has failed to establish any [*2]prejudice.While the amended ad damnum clause will expose the defendant to additional liability, this fact,standing alone, does not amount to prejudice (see RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538 [2008]; Pansini Stone Setting, Inc. v Crow &Sutton Assoc., Inc., 46 AD3d 784, 786 [2007]).
The defendant's remaining contention is without merit. Miller, J.P., Dillon, McCarthy andChambers, JJ., concur.