MORAND v. FARMERS NEW CENTURY INSURANCE COMPANY

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

Gig Klein MORAND, et al., Appellants, v. FARMERS NEW CENTURY INSURANCE COMPANY, Respondent.

2016–13314

Decided: April 24, 2019

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ. Merlin Law Group, P.A., New York, N.Y. (Verne A. Pedro of counsel), for appellants. Marshall Dennehey Warner Coleman & Goggin, Melville, N.Y. (Daniel W. Levin of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered November 18, 2016.  The order denied the plaintiffs' motion for leave to amend the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs filed a claim with their homeowner's insurer, the defendant, for damages to their home caused by the wind from Hurricane Sandy in October 2012.  According to the plaintiffs, the defendant “underpaid certain portions of the claim and denied others.”  The plaintiffs commenced this action to recover full payment for damages to the premises.  Nearly two years later, the plaintiffs moved for leave to amend the complaint to recover damages for contents within the home and additional living expenses.  The plaintiffs also sought to recover consequential and punitive damages.  The Supreme Court denied the plaintiffs' motion, stating that the plaintiffs' delayed attempt to add new damage claims constituted an “unfair surprise” to the defendant.  The plaintiffs appeal.

Leave to amend pleadings “ ‘should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit’ ” (Krigsman v. Cyngiel, 130 A.D.3d 786, 786, 14 N.Y.S.3d 94, quoting Gitlin v. Chirinkin, 60 A.D.3d 901, 901–902, 875 N.Y.S.2d 585).  “ ‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered’ ” (Yong Soon Oh v. Hua Jin, 124 A.D.3d 639, 640, 1 N.Y.S.3d 307, quoting Cohen v. Ho, 38 A.D.3d 705, 706, 833 N.Y.S.2d 542; see Caruso v. Anpro, Ltd., 215 A.D.2d 713, 713, 627 N.Y.S.2d 72).  “Where, however, an application for leave to amend is sought after a long delay and the case has been certified as ready for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious” (T & V Constr., Inc. v. Calapai, 90 A.D.3d 908, 909, 935 N.Y.S.2d 68 [internal quotation marks omitted]; see Countrywide Funding Corp. v. Reynolds, 41 A.D.3d 524, 839 N.Y.S.2d 108).  The court's exercise of its broad discretion in determining whether to grant leave to amend pleadings will not be lightly disturbed (see Krigsman v. Cyngiel, 130 A.D.3d at 786, 14 N.Y.S.3d 94; see Yong Soon Oh v. Hua Jin, 124 A.D.3d at 640, 1 N.Y.S.3d 307; T & V Constr., Inc. v. Calapai, 90 A.D.3d at 909, 935 N.Y.S.2d 68).

The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to amend the complaint.  The case had already been certified as ready for trial and nearly two years had passed since the plaintiffs filed the original complaint.  Additionally, the new damage claims were based on facts that the plaintiffs had been aware of since prior to commencement of the action, and the plaintiffs did not provide any excuse for their delay in seeking leave to amend the complaint to add these claims.  In light of these circumstances, there is no reason to disturb the court's determination to deny the plaintiffs' motion for leave to amend the complaint on the ground that it would unfairly surprise the defendant (see Yong Soon Oh v. Hua Jin, 124 A.D.3d at 640, 1 N.Y.S.3d 307; T & V Constr., Inc. v. Calapai, 90 A.D.3d at 909, 935 N.Y.S.2d 68; Countrywide Funding Corp. v. Reynolds, 41 A.D.3d at 525, 839 N.Y.S.2d 108; Caruso v. Anpro, Ltd., 215 A.D.2d at 714, 627 N.Y.S.2d 72).

We agree with the Supreme Court's determination that the plaintiffs' proposed claim for punitive damages was palpably insufficient.  Damages “arising from the breach of a contract will ordinarily be limited to the contract damages necessary to redress the private wrong, but ․ punitive damages may be recoverable if necessary to vindicate a public right” (New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315, 639 N.Y.S.2d 283, 662 N.E.2d 763; see JPMorgan Chase Bank, N.A. v. Corrado, 162 A.D.3d 994, 996, 80 N.Y.S.3d 366).  Punitive damages are available only where, inter alia, it is necessary to deter the defendant and others like it from engaging in conduct that is “morally culpable,” or is “actuated by evil and reprehensible motives” (Walker v. Sheldon, 10 N.Y.2d 401, 404, 223 N.Y.S.2d 488, 179 N.E.2d 497; see New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 315–316, 639 N.Y.S.2d 283, 662 N.E.2d 763).  The plaintiffs' proposed amendment was palpably insufficient as a matter of law to establish such conduct (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 315–316, 639 N.Y.S.2d 283, 662 N.E.2d 763; Kinzer v. Bederman, 59 A.D.3d 496, 497, 873 N.Y.S.2d 692).

RIVERA, J.P., CHAMBERS, COHEN and IANNACCI, JJ., concur.

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