KINZER v. BEDERMAN (2009)

In an action, inter alia, to recover damages for dental malpractice, etc., the defendants appeal, in part by permission, from an order of the Supreme Court, Nassau County (Mahon, J.), entered June 2, 2008, which denied their motion pursuant to CPLR 3024(b) to strike scandalous and prejudicial language from the complaint, and granted the plaintiffs' cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to add a demand for punitive damages.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion to strike scandalous and prejudicial language from the complaint is granted, and the plaintiffs' cross motion for leave to serve an amended complaint is denied.

 Leave to amend a complaint is to be freely granted, provided that the proposed amendment does not prejudice or surprise the defendant, is not patently devoid of merit, and is not palpably insufficient (see CPLR 3025[b];  Shovak v. Long Is. Commercial Bank, 50 A.D.3d 1118, 1120, 858 N.Y.S.2d 660;  Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238;  Pellegrini v. Richmond County Ambulance Serv., Inc., 48 A.D.3d 436, 851 N.Y.S.2d 268).   Punitive damages are recoverable in a dental malpractice action only where the defendant's conduct evinces “a high degree of moral culpability” or constitutes “willful or wanton negligence or recklessness” (Hill v. 2016 Realty Assoc., 42 A.D.3d 432, 433, 839 N.Y.S.2d 801;  see Morrell v. Gorenkoff, 278 A.D.2d 210, 717 N.Y.S.2d 907;  Lee v. Health Force, 268 A.D.2d 564, 702 N.Y.S.2d 108;  Rey v. Park View Nursing Home, 262 A.D.2d 624, 627, 692 N.Y.S.2d 686).   The plaintiffs' proposed amendment was palpably insufficient as a matter of law to show such conduct (see Hill v. 2016 Realty Assoc., 42 A.D.3d at 433, 839 N.Y.S.2d 801).   Accordingly, the plaintiffs' cross motion for leave to amend the complaint to add a demand for punitive damages should have been denied (cf. Van Caloen v. Poglinco, 214 A.D.2d 555, 625 N.Y.S.2d 245).

The defendants' motion to strike scandalous and prejudicial language from the complaint should have been granted as the subject language is irrelevant to the viability of a dental malpractice cause of action and prejudicial to the defendants (see Matter of Plaza at Patterson, LLC v. Clover Lake Holdings, Inc., 51 A.D.3d 931, 856 N.Y.S.2d 877;  Van Caloen v. Poglinco, 214 A.D.2d at 557, 625 N.Y.S.2d 245;  JC Mfg. v. NPI Elec., 178 A.D.2d 505, 577 N.Y.S.2d 145).