| Cowsert v Macy's E., Inc. |
| 2010 NY Slip Op 04689 [74 AD3d 1444] |
| June 3, 2010 |
| Appellate Division, Third Department |
| Kirian Cowsert, Individually and as Parent and Guardian of EliaCowsert, an Infant, Appellant, v Macy's East, Inc., et al.,Respondents. |
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Malone Jr., J. Appeal from an order of the Supreme Court (Caruso, J.), entered June 25,2009 in Schenectady County, which denied plaintiff's motion for leave to amend the complaint.[*2]
Plaintiff commenced this personal injury action seekingdamages for injuries sustained by her infant daughter on an escalator in a store owned bydefendant Macy's East, Inc. Plaintiff thereafter moved to amend the second amended complaintto add a claim of gross negligence and a demand for punitive damages. Although Supreme Courtfound that defendants would not be prejudiced by the amendment, it found that defendants'conduct did not rise to the level of gross negligence and, on that basis, the court denied themotion. Plaintiff appeals.
The decision whether to grant leave to amend pleadings rests within the trial court's sounddiscretion and " 'absent a clear abuse of that discretion, will not be lightly cast aside' " (Gersten-Hillman Agency, Inc. vHeyman, 68 AD3d 1284, 1289 [2009], quoting Pagan v Quinn, 51 AD3d 1299, 1300 [2008]). As the proponent ofthe motion, plaintiff was required to make a sufficient evidentiary showing to support theproposed claim (see Bast Hatfield, Inc.v Schalmont Cent. School Dist., 37 AD3d 987, 988 [2007]), and the motion may bedenied if the proposed amendment is plainly lacking in merit (see Gersten-Hillman Agency,Inc. v Heyman, 68 AD3d at 1289). Here, plaintiff sought to add a claim of gross negligenceand a demand for punitive damages, which requires a showing of a " 'reckless disregard for therights of others, bordering on intentional wrongdoing' " (Horwitz v Camelot Assoc. Corp., 66 AD3d 1299, 1302 [2009],quoting Haire v Bonelli, 57 AD3d1354, 1358 [2008]).
Although plaintiff alleges that defendants displayed gross indifference to the safety ofplaintiff's infant daughter and other members of the public using the escalator based upon theexistence of an unacceptably sized gap between the steps and the side skirt of the escalator,plaintiff presented no evidence that defendants were aware of this alleged defect and that theyconsciously disregarded the alleged risk (compare Dumesnil v Proctor & Schwartz, 199AD2d 869, 870-871 [1993]). Additionally, although plaintiff alleged that the gap constituted asafety code violation, there is no evidence in the record to support this contention and, even if itwere true, it would not be sufficient to support a claim for punitive damages (see Heller vLouis Provenzano, Inc., 303 AD2d 20, 25 [2003]). Finally, the record evidence does notsupport plaintiff's contention that a skirt brush, which would have covered the gap, was anestablished safety device such that the failure to install one evinced a reckless or wantondisregard for public safety on the part of any defendant. Accordingly, we cannot conclude thatSupreme Court abused its discretion in denying plaintiff's motion to amend the complaint.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withone bill of costs.