Ahmuty, Citrin & Spratt, LLP, Lake Success (John F.
Watkins of counsel), for appellants.
Altman Law Firm, PLLC, New York (Michael T. Altman of
counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
Supreme Court, New York County (Lynn R. Kotler, J.), entered
August 26, 2016, which, in these consolidated actions,
insofar as appealed from as limited by the briefs, denied
defendants Bovis Lend Lease LMB, Inc. and Bovis Lend Lease,
Inc.'s (Bovis) motions for summary judgment dismissing
plaintiffs Steve Olsen and Cathy Olsen's, and Vincent
Massa's, claims for punitive damages, unanimously
affirmed, without costs.
actions arise from a fire that occurred at the former
Deutsche Bank building located at 130 Liberty Street in Lower
Manhattan on August 18, 2007. Over a hundred firefighters
sustained injuries; two lost their lives. At the time, the
building was being decontaminated and demolished. In
connection with the abatement work, wooden barriers were
erected over the stairwells, preventing quick access to the
fire and quick escape when fire conditions got out of
control. Also, the water standpipe system was nonoperational
due to the removal of a 42-foot section of the pipe in the
basement. Bovis was the general contractor on the project.
court properly denied Bovis's motions for summary
judgment insofar as they sought dismissal of plaintiffs'
claims for punitive damages. Conduct justifying punitive
damages "must manifest spite or malice, or a fraudulent
or evil motive on the part of the defendant, or such a
conscious and deliberate disregard of the interests of others
that the conduct may be called wilful or wanton'"
(Marinaccio v Town of Clarence, 20 N.Y.3d 506, 511
, quoting Dupree v Giugliano, 20 N.Y.3d 921,
924 (2012); see also Bishop v 59 W. 12th St.
Condominium, 66 A.D.3d 401, 402 [1st Dept 2009]).
Although issues of fact exist as to whether Bovis's site
safety manger, Jeff Melofchik, was present shortly after the
subcontractor removed the 42-foot section of the pipe in
November 2006, and whether Melofchik became aware at that
point that the segment was part of the standpipe, it is
undisputed that Melofchik did not test the standpipe system
to ensure that it was operational during the 16-month period
from March 2006 (when Bovis became the general contractor on
the project) to August 2007 (when the fire occurred). Given
that the project consisted of demolition of a high-rise
building located in a densely populated area, with many
workers on site and potential for fire hazards, the jury
could reasonably find that Melofchik's failure to test
the standpipe system to ensure it was operational during the
16-month period and failure to enforce the no smoking policy
constituted wilful and wanton disregard for the interests of
others, justifying an award of punitive damages. We note that
Bovis admitted it was required by Department of Building
regulations to ensure the readiness of the standpipes for
use. Also Melofchik's failures affected the public
generally (see Matter of 91st St. Crane Collapse
Litig., 154 A.D.3d 139, 156-157 [1st Dept 2017];
Fabiano v Philip Morris Inc., 54 A.D.3d 146, 150-151
[1st Dept 2008]).
contention that it may not be held liable for punitive
damages because nothing showed that a "superior
officer" of the corporation ratified Melofchik's
egregious conduct is unavailing. An employer may be assessed
punitive damages for an employee's conduct "only
where management has authorized, participated in, consented
to or ratified the conduct giving rise to such damages, or
deliberately retained the unfit servant," such that it
is complicit in that conduct (Loughry v Lincoln First
Bank, 67 N.Y.2d 369, 378 ). Complicity is evident
when "a superior officer in the course of employment
orders, participates in, or ratifies outrageous conduct"
(id.). Although Melofchik was not a "superior
officer" and nothing suggests that Bovis management
authorized or ratified Melofchik's conduct, an issue of
fact exists as to whether management was aware of
Melofchik's incompetence but still "deliberately
retained the unfit servant (id.)."
court properly exercised its discretion in permitting
plaintiff to proceed on the second set of opposition papers
filed by plaintiffs, as the new papers were submitted before
Bovis's reply papers were due, did not change the
substance of what was originally served, and did not