| Aronis v TLC Vision Ctrs., Inc. |
| 2008 NY Slip Op 02090 [49 AD3d 576] |
| March 11, 2008 |
| Appellate Division, Second Department |
| George N. Aronis, Respondent, v TLC Vision Centers,Inc., et al., Defendants, and TLC Vision Corporation et al.,Appellants. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Nancy A. Breslow, John A. Lyddane, andSteven A. Lavietes of counsel), for appellant Eric Donnenfeld. Argyropoulos & Bender, Astoria, N.Y. (Susan E. Paulovich of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant EricDonnenfeld appeals, and the defendants TLC Vision Corporation, Laser Vision Centers, Inc.,TLC The Laser Center (Northeast), Inc., TLC Laser Eye Centers (Garden City), and Lori Landrioseparately appeal, as limited by their briefs, from so much of an order of the Supreme Court,Queens County (Satterfield, J.), dated October 16, 2006, as denied those branches of theirrespective motions which were pursuant to CPLR 3211 (a) (7) to dismiss the third cause of actionto recover punitive damages insofar as asserted against each of them and pursuant to CPLR 3024(b) to strike the prejudicial and inflammatory language in the plaintiff's bills of particulars.
Ordered that on the Court's own motion, the notices of appeal from so much of the order asdenied those branches of the motions which were to strike prejudicial and inflammatory languagein the plaintiff's bills of particulars are treated as applications for leave to appeal from thatportion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, those branches of themotion of the defendant Eric Donnenfeld and the separate motion of the defendants TLC VisionCorporation, Laser Vision Centers, Inc., TLC The Laser Center (Northeast), Inc., TLC Laser[*2]Eye Centers (Garden City), and Lori Landrio which werepursuant to CPLR 3211 (a) (7) to dismiss the third cause of action to recover punitive damagesinsofar as asserted against each of them and to strike the prejudicial and inflammatory languagein the plaintiff's bills of particulars are granted; and it is further,
Ordered that one bill of costs is awarded to the appellants appearing separately and filingseparate briefs.
The Supreme Court should have granted those branches of the respective motions of thedefendant Eric Donnenfeld and the defendants TLC Vision Corporation, Laser Vision Centers,Inc., TLC The Laser Center (Northeast), Inc., TLC Laser Eye Centers (Garden City), and LoriLandrio (hereinafter collectively the defendants) which were pursuant to CPLR 3211 (a) (7) todismiss the plaintiff's third cause of action to recover punitive damages insofar as assertedagainst each of them. "New York does not recognize an independent cause of action for punitivedamages" (Randi A. J. v Long Is.Surgi-Ctr., 46 AD3d 74, 80 [2007]; see Rocanova v Equitable Life Assur. Socy. ofU.S., 83 NY2d 603, 616 [1994]; Grazioli v Encompass Ins. Co., 40 AD3d 696, 698 [2007]; Yong Wen Mo v Gee Ming Chan, 17AD3d 356, 359 [2005]; Schwegel vChiaramonte, 4 AD3d 519, 521 [2004]). Moreover, "punitive damages are available forthe purpose of vindicating a public right only where the actions of the alleged tort-feasorconstitute gross recklessness or intentional, wanton or malicious conduct aimed at the pubicgenerally or are activated by evil or reprehensible motives" (Gravitt v Newman, 114AD2d 1000, 1002 [1985]; see Nooger v Jay-Dee Fast Delivery, 251 AD2d 307 [1998];Spinosa v Weinstein, 168 AD2d 32, 42-43 [1991]). Here, the plaintiff's allegationsamount to nothing more than allegations of mere negligence (see Sanders v New RochelleHosp. Med. Ctr., 203 AD2d 550 [1994]; Zabas v Kard, 194 AD2d 784 [1993];Spinosa v Weinstein, 168 AD2d at 43; Gravitt v Newman, 114 AD2d 1000[1985]) and do not rise to the level of moral culpability necessary to support a claim for punitivedamages (see Anderson v Elliott, 24AD3d 400 [2005]; Nooger v Jay-Dee Fast Delivery, 251 AD2d 307 [1998];Zabas v Kard, 194 AD2d 784 [1993]).
The Supreme Court also should have granted those branches of the defendants' respectivemotions which were to strike the prejudicial and inflammatory language in the plaintiff's bills ofparticulars, as that language was directed to his claim for punitive damages (see CPLR3024 [b]). Mastro, J.P., Fisher, Dillon and McCarthy, JJ., concur.