| Rosenblum v Frankl |
| 2008 NY Slip Op 10599 [57 AD3d 960] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Daniel Rosenblum, Respondent, v Robert H. Frankl et al.,Appellants. |
—[*1] Richard A. Glickel, West Nyack, N.Y., for respondent.
In an action, inter alia, to permanently enjoin the defendants, among others, from expendingpublic funds to pay legal fees incurred in connection with two proceedings challenging certainland use determinations of the Town of Ramapo, the defendants appeal from an order of theSupreme Court, Rockland County (Sherwood, J.), dated December 28, 2007, which denied theirmotion for leave to serve an amended answer, and granted the plaintiff's cross motion to strikethe eighth affirmative defense.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the defendants' motion forleave to amend their answer to assert counterclaims to recover punitive damages, and granted theplaintiff's cross motion to strike the eighth affirmative defense asserting their entitlement topunitive damages (see Yong Wen Mo v Gee Ming Chan, 17 AD3d 356 [2005];Schwegel v Chiaramonte, 4 AD3d 519, 521 [2004]).
While it is true that leave to amend pleadings should be liberally granted (see CPLR3025 [b]), it is equally true that "[w]here, as here, the proposed amendment is palpablyinsufficient as a matter of law or is totally devoid of merit, leave to amend should be denied"(Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381 [2006]; see Thone v CrownEquip. Corp., 27 AD3d 723 [2006]). In [*2]addition to thegeneral rule that a demand for punitive damages may not constitute a separate cause of action forpleading purposes (see Kantrowitz v Allstate Indem. Co., 48 AD3d 753 [2008];Grazioli v Encompass Ins. Co., 40 AD3d 696, 698 [2007]), it cannot be said that theplaintiff's conduct in commencing this action was so egregious as to warrant an award of punitivedamages (see Shovak v Long Is. Commercial Bank, 50 AD3d 1118 [2008]; Morton vBrookhaven Mem. Hosp., 32 AD3d 381 [2006]). Spolzino, J.P., Santucci, Miller, Dickersonand Eng, JJ., concur.