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Gershman v. Ahmad

Supreme Court of New York, Second Department

December 27, 2017

Lizaveta Gershman, respondent,
v.
Sammey Ahmad, appellant, et al., defendants. Index No. 18893/12

         D54211 C/htr

          Argued - October 19, 2017

          Morris Duffy Alonso & Faley, New York, NY(Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant.

          Cohen & Cohen Law Group, P.C., Forest Hills, NY (Albert I. Cohen and Charles Haviv of counsel), for respondent.

          PRISCILLA HALL, J.P. JEFFREY A. COHEN BETSYBARROS LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendant Sammey Ahmad appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated July 20, 2016, which denied his motion to dismiss so much of the complaint as sought to recover punitive damages as against him.

         ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Sammey Ahmad which was to dismiss the sixth cause of action insofar as asserted against him, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

         The plaintiff alleged that she sustained serious personal injuries while she was a passenger in a vehicle operated by the defendant Sammey Ahmad (hereinafter the defendant), when he lost control of the vehicle after a night of drinking, striking light poles and a tree. The plaintiff commenced this action against the defendant and others to recover damages for her injuries. The plaintiffs sixth cause of action seeks to recover punitive damages.

         The defendant moved pursuant to CPLR 3211(a)(7) and 3212 to dismiss the plaintiffs sixth cause of action insofar as asserted against him on the grounds that the plaintiff failed to state a cause of action and the alleged conduct did not rise to the level of conduct sufficient to constitute reckless, intentional, wanton, or malicious conduct. The Supreme Court denied the motion, and the defendant appeals.

         The plaintiff erroneously denominated her request for punitive damages as a separate cause of action. "New York does not recognize an independent cause of action for punitive damages'' (Randi A.J. v Long Is. Surgi-Ctr., 46 A.D.3d 74, 80; see Rocanova v Equitable Life Assur Socy. of U.S., 83 N.Y.2d 603, 616; Yong Wen Mo v Gee Ming Chan, 17 A.D.3d 356; Park v YMCA of Greater N.Y. Flushing, 17 A.D.3d 333). Accordingly, the Supreme Court erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7)to dismiss the separately pleaded sixth cause of action insofar as asserted against him.

         However, the plaintiffs request for punitive damages in the ad damnum clause of the complaint was proper. Whereas compensatory damages are intended to assure that the victim receives " fair and just compensation commensurate with the injury sustained, " punitive damages are meant to "punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future" (Ross v Louise Wise Servs., Inc., 8 N.Y.3d 478, 489). With regard to the availability of punitive damages in personal injury cases involving drunk drivers, while this Court has held that "[e]vidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages" (Boykin v Mora, 274 A.D.2d 441, 442; see Rodgers v Duffy, 95 A.D.3d 864, 866-867), this Court has also held that "driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in 'wanton and reckless' conduct evincing heedlessness and an utter disregard for the safety of others" (Chiara v Dernago, 128 A.D.3d 999, 1003, quoting Schragel v Juszczyk, 43 A.D.3d 1375, 1375). Indeed, punitive damages were properly imposed where the driver was excessively drunk (see Chiara v Dernago, 128 A.D.3d at 1003; Schragel v Juszczyk, 43 A.D.3d at 1376; Silvin v Karwoski, 242 A.D.2d 945) or was a rep eat offender (see Parkhill v Cleary, 305 A.D.2d 1088). Accordingly, a request for punitive damages can be stated in a case a rising from drinking and driving. Furthermore, at this stage it would be premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages (see Gipe v DBT Xpress, LLC, 150 A.D.3d 1208, 1209; Felton v Tourtoulis, 87 A.D.3d 983, 984). Thus, to the extent the plaintiff sought punitive damages in her ad damnum clause, she stated a request for such damages, and that branch of the defendant's motion which was pursuant to CPLR3211(a)(7) to dismiss that request for punitive damages insofar as asserted against him was properly denied (see Yong Wen Mo v Gee Ming Chan, 17 A.D.3d 356, 359-60).

         Furthermore, with respect to that branch of the defendant's motion which sought summary judgment dismissing the request for punitive damages insofar as asserted against him, it was the defendant's affirmative burden to " make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to [demonstrate the absence of] any material issues of fact" on the issue of punitive damages (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). He failed to proffer evidence that eliminated all triable issues of fact regarding the request for p unitive damages insofar as asserted against him. Accordingly, since he failed to demonstrate his prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied that branch of his ...


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