BOARD OF MANAGERS OF WATERFORD ASSOCIATION INC v. SAMII (2009)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 18, 2009, which, in an action by plaintiff condominium involving its right of access to defendant's unit, denied defendant's motion to amend her answer to include a demand for punitive damages under her counterclaim for diminution of her unit's value, unanimously affirmed, without costs.

Although the counterclaims as to which defendant sought to amend her answer to include a demand for punitive damages were dismissed by a subsequent order of the court, defendant maintains that she intends to appeal from that order as well. Under the circumstances, and in the interest of efficiency and judicial economy, we find it would be inappropriate to dismiss the instant appeal as moot.

Defendant's own evidence in support of the motion shows that plaintiff did make some efforts to address the problem leaks in a manner that would have avoided the need for access to controlling valves in defendant's unit, albeit not to the extent that defendant would have liked (see Vitra, Inc. v. Soho House, LLC, 50 A.D.3d 529, 856 N.Y.S.2d 100 [2008] ), and otherwise falls short of showing the “high degree of moral turpitude,” “wanton dishonesty” and utter malice necessary to an award of punitive damages (see Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007]; Gellman v. Seawane Golf & Country Club, Inc., 24 A.D.3d 415, 418-419, 805 N.Y.S.2d 411 [2005] ).