| Gauger v Ghaffari |
| 2004 NYSlipOp 04885 |
| June 14, 2004 |
| Appellate Division, Fourth Department |
| Jeff F. Gauger et al., Individually and as Co-Administrators of the Estate of Kayla A. Gauger, Deceased, Respondents, v Reza Ghaffari, M.D., et al., Appellants. |
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Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered November 15, 2002. The order denied the motion of defendants Reza Ghaffari, M.D., Reza Ghaffari, M.D., P.C., and Sara J. Parker, CNM for an order dismissing the claim for punitive damages and bifurcating the trial and denied the cross motion of defendant Cottrill's Pharmacy, Inc. in a wrongful death action.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the claim for punitive damages and as modified the order is affirmed without costs.
Memorandum: In this wrongful death action alleging medical malpractice, Supreme Court erred in denying that part of the motion of Reza Ghaffari, M.D., Reza Ghaffari, M.D., P.C., and Sara J. Parker, CNM (collectively, defendants) seeking dismissal of the claim for punitive damages pursuant to CPLR 3211 (a) (7). "Punitive damages may be awarded when a defendant's conduct is so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" (Dumesnil v Proctor & Schwartz, 199 AD2d 869, 870 [1993]). Here, the negligence alleged "does not approach the level of gross indifference to patient care necessary to support a claim for punitive damages" (Pascazi v Pelton, 210 AD2d 910, 910 [1994]). We therefore modify the order accordingly. We have considered defendants' remaining contention and conclude that it lacks merit. Present—Green, J.P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.