| Barnes v Hodge |
| 2014 NY Slip Op 04851 [118 AD3d 633] |
| June 26, 2014 |
| Appellate Division, First Department |
[*1]
| Stephanie Barnes, Respondent, v Wayne F.Hodge, Defendant, and United Parcel Service, Inc.,Appellant. |
Ansa Assuncao LLP, White Plains (Michael J. O'Neill of counsel), for appellant.
Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel),for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered March 6,2013, which, insofar as appealed from, denied the motion of defendant United ParcelService, Inc. (UPS) to dismiss plaintiff's claim for punitive damages, unanimouslyreversed, on the law, without costs, and the motion granted.
Plaintiff pedestrian alleges that she was struck by a vehicle owned by UPS, andoperated by its driver, defendant Hodge, while she was in an crosswalk. At issue isplaintiff's demand for punitive damages.
To hold UPS vicariously liable for punitive damages, plaintiff must establish thatUPS "authorized, participated in, consented to or ratified the conduct giving rise to suchdamages" (Melfi v Mount SinaiHosp., 64 AD3d 26, 42 [1st Dept 2009]; Ostroy v Six Sq. LLC, 100 AD3d 493, 495 [1st Dept2012]). We must consider whether the complaint contains the requisite allegations that"the wrongdoing is intentional or deliberate, presents circumstances of aggravation oroutrage, evinces a fraudulent or evil motive, or is in such conscious disregard of therights of another that it is deemed willful and wanton" (Bishop v 59 W. 12th St.Condominium, 66 AD3d 401, 402 [1st Dept 2009]; see also Giblin vMurphy, 73 NY2d 769, 772 [1988]).
"Although on a motion to dismiss plaintiffs' allegations are presumed to be true andaccorded every favorable inference, conclusory allegations—claims consisting ofbare legal conclusions with no factual specificity—are insufficient to survive amotion to dismiss" (Godfrey vSpano, 13 NY3d 358, 373 [2009]). Here, the complaint alleges in conclusoryand conjectural fashion that "defendants were grossly, willfully and wantonly negligentand acted with reckless indifference to the health and safety of plaintiff." These legalconclusions are insufficient as the complaint does not allege any facts to demonstrate thatUPS engaged in conduct which rose to the high level of moral culpability to support aclaim for punitive damages (seeCoville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]).Plaintiff cannot maintain the punitive damages demand on the hope that discovery mightsomeday provide a basis for it (see Mandarin [*2]Trading Ltd. vWildenstein, 65 AD3d 448, 451 [1st Dept 2009], affd 16 NY3d 173[2011]). However, should discovery reveal facts supporting a claim for punitivedamages, plaintiff could of course move for leave to replead the demand (see 87 Chambers, LLC v 77 Reade,LLC, 114 AD3d 525 [1st Dept 2014]). Concur—Mazzarelli, J.P., Acosta,Andrias, Saxe and Clark, JJ.