| Edwards v 1234 Pac. Mgt., LLC |
| 2016 NY Slip Op 03464 [139 AD3d 658] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Orlaine Edwards, Respondent, v 1234 PacificManagement, LLC, Appellant. |
Carman, Callahan & Ingham, LLP, Farmingdale, NY (Peter F. Breheny, LaurenM. Mazzara, and Anne P. O'Brien of counsel), for appellant.
Johnson Liebman, LLP, New York, NY (Charles D. Liebman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County(King, J.), dated April 22, 2015, as granted that branch of the plaintiff's motion whichwas pursuant to CPLR 3025 (b) for leave to amend the complaint to assert a claim forpunitive damages.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for personal injuriesallegedly sustained by her when she slipped and fell on an interior staircase in theapartment building in which she resided, which was owned by the defendant. Theplaintiff alleges that she was forced to descend the staircase due to a continuing elevatoroutage, which allegedly was a frequent occurrence at the premises. The plaintiff allegesthat she slipped and fell on kitty litter that had been present on the staircase for anextended period of time.
After some discovery, the plaintiff moved, inter alia, for leave to amend thecomplaint to assert a claim for punitive damages. The plaintiff alleges that the elevatorhad been out of service for approximately one month prior to her accident, and that thesuperintendent failed to remove the garbage from the higher floors of the building orproperly clean the common areas such as the subject staircase. The plaintiff contends thatthe refuse on the staircase was only one manifestation of a larger intentional course ofaction and conduct that demonstrated an utter disregard for the rights and safety of thetenants of the premises. The plaintiff further asserts that the actions of the defendant wereintended to drive the rent-stabilized tenants from the building in an effort to raise rents.The Supreme Court granted the plaintiff leave to amend her complaint to assert a claimfor punitive damages.
"Applications for leave to amend pleadings under CPLR 3025 (b) should be freelygranted unless the proposed amendment (1) would unfairly prejudice or surprise theopposing party, or (2) is palpably insufficient or patently devoid of merit" (Maldonado v Newport Gardens,Inc., 91 AD3d 731, 731-732 [2012]; see Favia v Harley-Davidson Motor Co., Inc., 119 AD3d836, 836 [2014]). "No evidentiary showing of merit is required under CPLR 3025(b)," as the court need only determine [*2]whether theproposed amendment is "palpably insufficient" to state a cause of action or is "patentlydevoid of merit" (Lucido vMancuso, 49 AD3d 220, 229 [2008] [internal quotation marks omitted]).Further, the legal sufficiency or merits of a claim need not be examined unless suchinsufficiency or lack of merit is clear and free from doubt (see Favia vHarley-Davidson Motor Co., Inc., 119 AD3d at 836).
Here, the defendant did not allege before the Supreme Court that the proposedamended pleading would result in any prejudice or surprise. In any event, the plaintiff'smotion was made prior to the filing of the note of issue, and was predicated oninformation obtained during discovery. Further, the proposed amended pleading was notpalpably insufficient or patently devoid of merit (see id. at 836-837; Pellegrini v Richmond CountyAmbulance Serv., Inc., 48 AD3d 436 [2008]). We note that the plaintiff muststill prove the merits of the punitive damages claim (see Lucido v Mancuso, 49AD3d at 229).
Accordingly, the Supreme Court properly granted the plaintiff's motion for leave toserve an amended complaint to assert a claim for punitive damages. Leventhal, J.P.,Dickerson, Cohen and Hinds-Radix, JJ., concur.