Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka
and Andrea M. Alonso of counsel), for appellant.
& 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, BETSY BARROS, LINDA
DECISION & ORDER
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.
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 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 plaintiff's sixth cause of action
seeks to recover punitive damages.
defendant moved pursuant to CPLR 3211(a)(7) and 3212 to
dismiss the plaintiff's 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.
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
the plaintiff's 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 repeat
offender (see Parkhill v Cleary, 305 A.D.2d 1088).
Accordingly, a request for punitive damages can be stated in
a case arising 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 CPLR 3211(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).
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 punitive 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 motion ...