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Wing Wong Realty Corp. v. Flintlock Construction Services

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 18, 2010

WING WONG REALTY CORP., PLAINTIFF-APPELLANT,
v.
FLINTLOCK CONSTRUCTION SERVICES, LLC, ET AL., DEFENDANTS-RESPONDENTS, DIAMOND POINT EXCAVATION CORP., DEFENDANT. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, New York County (Debra A. James, J.), entered February 19, 2009, which denied plaintiff's motion for leave to amend the complaint to add a cause of action for gross negligence and a demand for punitive damages, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam, RomÁn, JJ.

101323/05

The court correctly examined the proposed amended complaint to determine if there was evidentiary proof that could be considered on a summary judgment motion (see American Theatre for the Performing Arts, Inc. v Consolidated Credit Corp., 45 AD3d 506 [2007]) and correctly determined that plaintiff failed to allege facts that would support a finding that defendants' conduct evinced a "conscious disregard of the rights of others or [was] so reckless as to amount to such disregard" (Home Ins. Co. v American Home Prods. Corp., 75 N.Y.2d 196, 200 [1990] [internal quotation marks and citation omitted]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100318

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