| Worthen-Caldwell v Special Touch Home Care Servs., Inc. |
| 2010 NY Slip Op 08096 [78 AD3d 822] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Janice Worthen-Caldwell, Respondent, v Special TouchHome Care Services, Inc., et al., Appellants. |
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In an action, inter alia, to recover damages for sexual harassment, the defendants appeal froma judgment of the Supreme Court, Kings County (Jacobson, J.), entered May 1, 2009, which,upon a jury verdict awarding the plaintiff the principal sums of $1,300,000 for past pain andsuffering and $560,000 for future pain and suffering, is in favor of the plaintiff and against themin the principal sum of $1,860,000.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, and anew trial on the issue of damages for past and future pain and suffering is granted, with costs,unless within 30 days after service upon the plaintiff of a copy of this decision and order, theplaintiff serves and files in the office of the Clerk of the Supreme Court, Kings County, a writtenstipulation consenting to reduce the verdict as to damages for past pain and suffering from theprincipal sum of $1,300,000 to the principal sum of $200,000 and as to damages for future painand suffering from the principal sum of $560,000 to the principal sum of $50,000, and to theentry of an appropriate amended judgment accordingly; in the event that the plaintiff sostipulates, then the judgment, as so reduced and amended, is affirmed, without costs ordisbursements.
" 'Leave to conform a pleading to the proof pursuant to CPLR 3025 (c) should be freelygranted absent prejudice or surprise resulting from the delay' " (Bryant v Broadcast Music, Inc., 60AD3d 799, 800 [2009], quoting Alomia v New York City Tr. Auth., 292 AD2d 403,406 [2002]). The determination whether to grant such leave is within the court's discretion, andthe exercise of that discretion will not be lightly disturbed (see Surgical Design Corp. v Correa, 31 AD3d 744, 745 [2006]; Comsewogue Union Free School Dist. vAllied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]; Leonardi v City of NewYork, 294 AD2d 408, 409 [2002]; Castagne v Barouh, 249 AD2d 257, 257-258[1998]). In determining whether a motion for leave to conform should be granted, the court "'should consider how long the party seeking the amendment was aware of the facts upon whichthe motion was predicated, whether a reasonable excuse for the delay was offered, and whetherprejudice [*2]resulted therefrom' " (American Cleaners, Inc. v American Intl.Specialty Lines Ins. Co., 68 AD3d 792, 794 [2009], quoting Cohen v Ho, 38 AD3d 705, 706[2007]; see Rose v Velletri, 202 AD2d 566, 567 [1994]; Rothstein v City Univ. ofN.Y., 194 AD2d 533 [1993]). " 'Mere lateness is not a barrier to the amendment. It must belateness coupled with significant prejudice to the other side, the very elements of the lachesdoctrine' " (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quotingSiegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:5, at 477[1974 ed]; see Abrahamian v TakChan, 33 AD3d 947, 949 [2006]; Sievert v Morlef Holding Co., 220 AD2d 403[1995]; Evans v Kringstein, 193 AD2d 714 [1993]).
Here, the Supreme Court, after weighing these considerations, permitted the plaintiff toconform her pleadings to the proof by adding a claim under the New York City Human RightsLaw, but accepted the defendants' principal argument that they would be prejudiced by theresultant availability of punitive damages, and therefore disallowed any punitive damages claim.In doing so, the Supreme Court did not improvidently exercise its discretion (see 715 Ocean Parkway Owners Corp. vKlagsbrun, 74 AD3d 1314 [2010]; Bryant v Broadcast Music, Inc., 60 AD3d 799 [2009]; RCLA, LLC v 50-09 Realty, LLC, 48AD3d 538, 539 [2008]; PansiniStone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784, 786 [2007]; Dinizio & Cook, Inc. v Duck Cr. Mar. atThree Mile Harbor, Ltd., 32 AD3d 989, 990 [2006]).
However, the amount of damages awarded by the jury for past and future pain and sufferingdeviated materially from what would be reasonable compensation to the extent indicated herein(see CPLR 5501 [c]). Prudenti, P.J., Skelos, Dickerson and Lott, JJ., concur.