DEON v. FORTUNA (2001)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Hillery, J.), dated July 13, 2000, as denied that branch of their motion which was to amend their complaint to add a claim for punitive damages.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Richard Deon and his daughter, the infant plaintiff Louise Deon, were injured when their automobile was struck by a vehicle operated by the defendant.   Sobriety tests administered at the scene revealed that the defendant had a blood alcohol level of .10%, and he subsequently pleaded guilty to a misdemeanor charge of driving while intoxicated.

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend their complaint to add a claim for punitive damages.   Evidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages (see, Boykin v. Mora, 274 A.D.2d 441, 442, 711 N.Y.S.2d 904;   Sweeney v. McCormick, 159 A.D.2d 832, 834, 552 N.Y.S.2d 707).   The Supreme Court properly concluded that the circumstances of this case did not demonstrate that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages (see, Boykin v. Mora, supra;  Sweeney v. McCormick, supra).