Board of Mgrs. of the Waterford Assn., Inc. v Samii

Board of Mgrs. of the Waterford Assn., Inc. v Samii 2009 NY Slip Op 09405 [68 AD3d 585] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Board of Managers of the Waterford Association, Inc., Respondent,
v
Negar Samii et al., Appellants.

—[*1] Cox Padmore Skolnik & Shakarchy LLP, New York (Sanford Hausler of counsel), for appellants.

Kagan Lubic Lepper Lewis Gold & Colbert LLP, New York (Jesse P. Schwartz of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 18, 2009, which, in an action by plaintiff condominium involving its right of access to defendant's unit, denied defendant's motion to amend her answer to include a demand for punitive damages under her counterclaim for diminution of her unit's value, unanimously affirmed, without costs.

Although the counterclaims as to which defendant sought to amend her answer to include a demand for punitive damages were dismissed by a subsequent order of the court, defendant maintains that she intends to appeal from that order as well. Under the circumstances, and in the interest of efficiency and judicial economy, we find it would be inappropriate to dismiss the instant appeal as moot.

Defendant's own evidence in support of the motion shows that plaintiff did make some efforts to address the problem leaks in a manner that would have avoided the need for access to controlling valves in defendant's unit, albeit not to the extent that defendant would have liked (see Vitra, Inc. v Soho House, LLC, 50 AD3d 529 [2008]), and otherwise falls short of showing the "high degree of moral turpitude," "wanton dishonesty" and utter malice necessary to an award of punitive damages (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]; Gellman v Seawane Golf & Country Club, Inc., 24 AD3d 415, 418-419 [2005]). Concur—Tom, P.J., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.