| Kinzer v Bederman |
| 2009 NY Slip Op 01086 [59 AD3d 496] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Louise Kinzer et al., Respondents, v Ross Bederman et al.,Appellants. |
—[*1] Pellegrini & Associates, LLC, New York, N.Y. (Juan C. Restrepo-Rodriguez of counsel), forrespondents.
In an action, inter alia, to recover damages for dental malpractice, etc., the defendantsappeal, in part by permission, from an order of the Supreme Court, Nassau County (Mahon, J.),entered June 2, 2008, which denied their motion pursuant to CPLR 3024 (b) to strike scandalousand prejudicial language from the complaint, and granted the plaintiffs' cross motion pursuant toCPLR 3025 (b) for leave to amend the complaint to add a demand for punitive damages.
Ordered that the order is reversed, on the law, with costs, the defendants' motion to strikescandalous and prejudicial language from the complaint is granted, and the plaintiffs' crossmotion for leave to serve an amended complaint is denied.
Leave to amend a complaint is to be freely granted, provided that the proposed amendmentdoes not prejudice or surprise the defendant, is not patently devoid of merit, and is not palpablyinsufficient (see CPLR 3025 [b]; Shovak v Long Is. Commercial Bank, 50 AD3d 1118, 1120[2008]; Lucido v Mancuso, 49AD3d 220, 229 [2008]; Pellegrini vRichmond County Ambulance Serv., Inc., 48 AD3d 436 [2008]). Punitive damages arerecoverable in a dental malpractice action only where the defendant's conduct evinces "a highdegree of moral culpability [or constitutes] willful or wanton negligence or recklessness" (Hill v 2016 Realty Assoc., 42 AD3d432, 433 [2007] [internal quotation marks omitted]; see Morrell v Gorenkoff, 278AD2d 210 [2000]; Lee v Health Force, 268 AD2d 564 [2000]; Rey v Park ViewNursing Home, 262 AD2d 624, 627 [1999]). The plaintiffs' proposed amendment waspalpably insufficient as a matter of law to show such conduct (see Hill v 2016 Realty Assoc.,42 AD3d at 433). Accordingly, the plaintiffs' cross motion [*2]for leave to amend the complaint to add a demand for punitivedamages should have been denied (cf. Van Caloen v Poglinco, 214 AD2d 555 [1995]).
The defendants' motion to strike scandalous and prejudicial language from the complaintshould have been granted as the subject language is irrelevant to the viability of a dentalmalpractice cause of action and prejudicial to the defendants (see Matter of Plaza at Patterson, LLC v Clover Lake Holdings, Inc., 51AD3d 931 [2008]; Van Caloen v Poglinco, 214 AD2d at 557; JC Mfg. v NPIElec., 178 AD2d 505 [1991]). Fisher, J.P., Covello, Balkin and Belen, JJ., concur.