| Kraycar v Monahan |
| 2008 NY Slip Op 01923 [49 AD3d 507] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Timothy Kraycar, Respondent, v Thomas C. Monahan etal., Appellants. |
—[*1] Jean Marie Hazelton Law Firm, P.C., Southampton, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Baisley, J.), dated January 2, 2007, which granted theplaintiff's motion for leave to serve a supplemental bill of particulars and for leave to serve anamended complaint to recover punitive damages against the defendant Linda Monahan.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion is denied.
It is well settled that a supplemental bill of particulars may be used for purposes of updating"claims of continuing special damages and disabilities" (CPLR 3043 [b]), but may not be usedfor adding new injuries or damages (see Kyong Hi Wohn v County of Suffolk, 237 AD2d412 [1997]; Sagar v Khun Y. Son, 208 AD2d 1092 [1994]; Aversa v Taubes, 194AD2d 580 [1993]; Mazzilli v City of New York, 154 AD2d 355, 356-357 [1989]). In thiscase, on the eve of trial, the plaintiff sought to add new injuries to the bill of particulars whichhad not been mentioned previously, and which did not appear in the medical records for nearlyfive years after the date of the accident. Under these circumstances, it was an improvidentexercise of discretion to allow the plaintiff to claim these new injuries.
Similarly, it was an improvident exercise of discretion to allow the plaintiff to amend thecomplaint to add a claim for punitive damages against the defendant Linda Monahan. Whileleave to amend pleadings should be liberally granted, where the proposed amendment is"palpably insufficient as a matter of law or is totally devoid of merit, leave to amend should bedenied" (Morton v Brookhaven Mem.Hosp., 32 AD3d 381, 381 [2006]; see Arnold v Siegel, 296 AD2d 363 [2002]).Punitive damages are recoverable in a negligence action only where the conduct in questionevidences "a high degree of moral culpability," or "the conduct is so flagrant as to transcend merecarelessness" and "constitutes willful or wanton negligence or recklessness" (Lee v HealthForce, 268 AD2d 564, 564 [2000] [citation omitted]; see Rey v Park View NursingHome, 262 AD2d 624, 627 [1999]). In this case, the record is "devoid of any evidence ofwillful or wanton negligence" on the part of the defendant Linda Monahan, and, therefore, thatbranch of the plaintiff's motion which was for leave to amend the complaint should have beendenied (Morton v Brookhaven Mem. Hosp., 32 AD3d at 381; see Arnold vSiegel, 296 AD2d 363 [2002]; Lee v Health Force, 268 AD2d 564 [2000]).
We note that the plaintiff failed to establish his claim that this appeal should be dismissed asuntimely taken. Spolzino, J.P., Santucci, Dillon and Balkin, JJ., concur.