BARRY v. Schiavone Construction Co., respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Augustine BARRY, et al., appellants, v. CITY OF NEW YORK, et al., defendants, Schiavone Construction Co., respondent.

Decided: March 29, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. T. Kevin Murtha & Associates, P.C., Westbury, N.Y. (Joseph E. Madsen of counsel), for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for respondent.

In an action, inter alia, 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, Queens County (Polizzi, J.), dated May 8, 1998, as denied those branches of their motion which were to dismiss the seventh affirmative defense of the defendant Schiavone Construction Co. and for leave to amend the complaint pursuant to CPLR 3025(b) to include demands for punitive damages against Schiavone Construction Co. as to their fourth, fifth, sixth, seventh, and eighth causes of action.

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

The plaintiffs' complaint asserted 10 causes of action.   The ninth cause of action asserted a claim for punitive damages.   In its answer, the defendant Schiavone Construction Co. (hereinafter Schiavone) asserted as a seventh affirmative defense that the plaintiffs had failed to properly state a claim for punitive damages.   Thereafter, the plaintiffs moved, inter alia, to amend their complaint to assert claims for punitive damages against Schiavone under their fourth, fifth, sixth, seventh, and eighth causes of action and to strike Schiavone's seventh affirmative defense.

The branches of the plaintiffs' motion which were for leave to amend their complaint to include demands for punitive damages against Schiavone as to their fourth, fifth, sixth, seventh, and eighth causes of action and to strike Schiavone's seventh affirmative defense were properly denied by the Supreme Court.   The proposed amendments failed to sufficiently set forth a claim for punitive damages (see generally, Romano v. Damiano, 242 A.D.2d 267, 661 N.Y.S.2d 40;  Washington Ave. Assocs. Inc. v. Euclid Equip., 229 A.D.2d 486, 645 N.Y.S.2d 511).

MEMORANDUM BY THE COURT.

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