DAVIS v. Felipe D. Chairez et al., Defendants. (2023)

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered February 8, 2022, which, to the extent appealed from as limited by the briefs, denied defendant Mellifont Construction Corp.’s cross-motion to dismiss plaintiff's claim for punitive damages as against it, unanimously affirmed, without costs.

The motion court properly denied Mellifont's cross-motion to dismiss plaintiff's claim for punitive damages in connection with the third cause of action for negligent hiring, supervision and retention.  When Mellifont cross-moved to dismiss plaintiff's claim for punitive damages, it relied on its codefendant's argument that the allegations in the complaint were insufficient to support a claim for punitive damages.  However, Mellifont never argued that plaintiff's allegations directed against it specifically, as opposed to the allegations against its codefendant, were insufficient to support a claim for punitive damages.  Instead, Mellifont makes this argument for the first time on appeal and therefore, it is unpreserved (see Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 A.D.3d 525, 525, 999 N.Y.S.2d 33 [1st Dept. 2014]).

Moreover, contrary to Mellifont's assertion, in certain circumstances, punitive damages can be imposed against an employer for the actions of its employee (see Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 378, 502 N.Y.S.2d 965, 494 N.E.2d 70 [1986] [punitive damages may be awarded against an employer “where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit servant”]).