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Supreme Court, New York,

Samantha PULIZZI, Plaintiff, v. JYOTI SAI HOSPITALITY, LLC and Holiday Inn Express Hotel & Suites, Defendants.


Decided: January 11, 2018

Matthew J. Kelly, Esq., Roemer Wallens Gold & Mineaux, LLP, 13 Columbia Circle, Albany, New York 12203, Counsel for Plaintiff, movant Patrick D. Slade, Esq., Santacrose & Frary, One Columbia Circle, Albany, New York 12203, Counsel for Defendants

This is a personal injury action wherein a garbage can/trash receptacle in a restroom fell from the wall and struck Plaintiff's foot, allegedly causing injury. Plaintiff moves to amend the complaint to add a claim for punitive damages. The impetus for such amendment is the deposition testimony of a former maintenance employee who testified that the garbage can had been broken for “a long period of time.” The former employee also testified his request to hire a contractor or obtain the proper equipment to fix the garbage can was denied. Plaintiff equates this conduct as willful and wanton conduct.

Motion denied. Generally, “leave to amend a complaints rests within the trial court's discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit” (Acker v. Garson, 306 AD2d 609, 609–10 [3d Dept 2003], quoting Berger v. Water Commrs. of Town of Waterford, 296 AD2d 649, 649 [3d Dept 2002]; see CPLR R. 3025 [b]; see also Matter of Von Bulow, 63 NY2d 221, 224 [1984] [noting that courts considering motions to amend the pleadings pursuant to CPLR R. 3025 are afforded “the widest possible latitude” in permitting or denying such amendment], accord Murray v. City of New York, 43 NY2d 400, 405 [1977]; Heller v. Louis Provenzano, Inc., 303 AD2d 20, 25 [1st Dept 2003] [“While it is true that motions for leave to amend pleadings are to be liberally granted in the absence of prejudice or surprises ․ it is equally true that the court should examine the sufficiency of the merits of the proposed amendment when considering such motions.”].) It so follows that “[t]he requirements for a motion to amend pleadings include an evidentiary showing that a claim or defense can be supported” (Taylor v. Dyer, 190 AD2d 902, 904 [3d Dept 1993] ).

“Punitive or exemplary damages have been allowed in cases where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives” (Walker v. Sheldon, 10 NY2d 401, 404 [1961] ). “Punitive damages are ‘intended as punishment for gross misbehavior for the good of the public’ ” (Trudeau v. Cooke, 2 AD3d 1133, 1134 [3d Dept 2003], quoting Home Ins. Co. v. American Home Prods. Corp., 75 NY2d 196, 203 [1990] ). Thus, “[p]unitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives” (Rodgers v. Duff, 95 AD3d 864, 865 [2d Dept 2012] ). “Defendant's conduct, in other words, must reflect ‘a high degree of moral culpability, ․ [be] so flagrant as to transcend mere carelessness, or ․ constitute [ ] willful or wanton negligence or reckless’ ” (George v. Albert, 141 AD3d 1004, 1005 [3d Dept 2016], quoting Sparks v. Fels, 137 AD3d 1623, 1623 [4th Dept 2016] ).

Defendant opposes the application citing to Sweeney v. McCormick (159 AD2d 832 [3d Dept 1990] ), wherein the Appellate Division, Third Department, found no “wanton or reckless conduct” where the defendant with a BAC of .11 caused a motor vehicle accident resulting in personal injuries to the plaintiff. The Court is familiar with this line of cases. Recently, this Court denied a similar application to amend the complaint to add punitive damages where the defendant was driving while intoxicated with his children in the vehicle when he crossed the center line and struck the plaintiff's vehicle. (See Cole v. Wellington, Index No. 16–0163 [Sup Ct, Ulster County December 8, 2017, Fisher, J.].) It simply cannot be said that failing to repair a garbage can/trash receptacle hanging on a wall raises to a sufficient level of flagrant willful or wanton negligence more than a drunk driver with his children in the vehicle that crosses the center line does.

Plaintiff's reliance on George v. Albert (supra, 141 AD3d at 1005) is greatly misplaced. Only less innocuous facts were cherry-picked from George to compare to this case. But in George, where the court did permit an amendment for punitive damages, an off-duty state trooper followed the plaintiff to a gas station, aggressively approached the plaintiff and engaged in a verbal dispute with him, threatened the plaintiff, pushed him in the chest so hard that the plaintiff fell to the ground, then “placed [plaintiff] in a choke hold that cut off his ability to breathe.” The defendant then had the plaintiff handcuffed by responding officers and hauled away in a patrol car while he was seen on surveillance cameras laughing with colleagues. The instant case does not come close in comparison.

In reviewing the limited record before it, the Court finds that failing to repair a trash can/garbage receptacle hanging on a wall is not evil or reprehensible, gross recklessness or intentional, wanton, or malicious conduct aimed at the public generally, or necessary to vindicate a public right.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Plaintiff's motion is DENIED, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.


Lisa M. Fisher, J.

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