Cole v Wellington

[*1] Cole v Wellington 2017 NY Slip Op 51989(U) Decided on December 8, 2017 Supreme Court, Ulster County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 8, 2017
Supreme Court, Ulster County

Travis Cole, Plaintiff,

against

Andrew C. Wellington, Defendant.



16-0163



Eli B. Basch, Esq.

Counsel for Plaintiff, movant

Basch & Keegan

307 Clinton Avenue

P.O. Box 4235

Kingston, New York 12402

Samantha M. Fox, Esq.

Counsel for Defendant

Santacrose & Frary

One Columbia Circle

Albany, New York 12203
Lisa M. Fisher, J.

This is a personal injury action involving a motor vehicle accident on March 18, 2015, wherein Plaintiff was allegedly injured when the vehicle owned and operated by Defendant allegedly crossed the center line and struck Plaintiff's vehicle. Subsequent investigation determined that Defendant was driving under the influence of alcohol. Defendant had his two minor children in the vehicle at the time of the collision.

Now, Plaintiff moves to amend the complaint to add punitive damages "by reason of the conduct of the defendant, Andrew C. Wellington, in injuring the plaintiff and other members of the public while driving in an intoxicated condition at an excessive rate of speed, crossing the center line of the roadway, failing to brake, slow down, while having ingested alcohol and other intoxicants" (from the apparently proposed "amended complaint," bearing the date January 14, 2016). Defendant opposes the application, arguing that there is insufficient evidence submitted in the opposition of the motion to warrant an amendment. Further, Defendant argues that it is [*2]well-established that intoxication alone is insufficient to warrant punitive damages. Plaintiff submits a reply, including the indictments and a subsequent parole violation.

Generally, "leave to amend a complaints rests within the trial court's discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit" (Acker v Garson, 306 AD2d 609, 609—10 [3d Dept 2003], quoting Berger v Water Commrs. of Town of Waterford, 296 AD2d 649, 649 [3d Dept 2002]; see CPLR R. 3025 [b]; see also Matter of Von Bulow, 63 NY2d 221, 224 [1984] [noting that courts considering motions to amend the pleadings pursuant to CPLR R. 3025 are afforded "the widest possible latitude" in permitting or denying such amendment], accord Murray v City of New York, 43 NY2d 400, 405 [1977]; Heller v Louis Provenzano, Inc., 303 AD2d 20, 25 [1st Dept 2003] ["While it is true that motions for leave to amend pleadings are to be liberally granted in the absence of prejudice or surprises . . . it is equally true that the court should examine the sufficiency of the merits of the proposed amendment when considering such motions."].) It so follows that "[t]he requirements for a motion to amend pleadings include an evidentiary showing that a claim or defense can be supported" (Taylor v Dyer, 190 AD2d 902, 904 [3d Dept 1993]).

"Punitive or exemplary damages have been allowed in cases where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives" (Walker v Sheldon, 10 NY2d 401, 404 [1961]). "Punitive damages are 'intended as punishment for gross misbehavior for the good of the public'" (Trudeau v Cooke, 2 AD3d 1133, 1134 [3d Dept 2003], quoting Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203 [1990]). Thus, "[p]unitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives" (Rodgers v Duff, 95 AD3d 864, 865 [2d Dept 2012]). "Defendant's conduct, in other words, must reflect 'a high degree of moral culpability, . . . [be] so flagrant as to transcend mere carelessness, or . . . constitute [ ] willful or wanton negligence or reckless'" (George v Albert, 141 AD3d 1004, 1005 [3d Dept 2016], quoting Sparks v Fels, 137 AD3d 1623, 1623 [4th Dept 2016]).

However, "[w]ell-settled precedent instructs that intoxication alone does not open the door for punitive damages and that each situation must be considered on a case-by-case basis" (Trudeau, 2 AD3d at 1134). Indeed, "[e]vidence that a defendant was driving while intoxicated at the time of a motor vehicle accident standing alone is insufficient to support an award of punitive damages, absent evidence of willful or wanton reckless conduct" (Taylor, 190 AD2d at 903).

Here, Plaintiff has provided unsatisfactory evidence to support the proposed amendment. First, there is no evidence that Defendant operated at an "excessive rate of speed," failed to "brake," failed to "slow down," or ingested "other intoxicants." Plaintiff offers photographs of Defendant's vehicle that "alone show excessive speed." These photographs depict a stationary vehicle off the road with the hood opened, but there is not a visible scratch, indent, or blemish on the vehicle from the angles the photographs were taken. The only evidence of crossing the center line was the uncertified police accident report. Defendant's guilty plea is to VTL § 1192 (2-a) (b) and the related sanctions VTL section, which is aggravated driving while intoxicated with a child in the car. Plaintiff's contention that he plead guilty to operating with a BAC of .18 was not the plea, but an indictment which has no probative value—nor does the subsequent parole violation. The record is completely devoid of any level of intoxication provided or any [*3]competent facts. Even accepting the police accident report, the only wrongful conduct is that Defendant was intoxicated and crossed the center line. This is not sufficient to demonstrate "evil and reprehensible motives," "gross recklessness," or "wanton or malicious conduct aimed at the public generally."

Plaintiff seems to argue that the fact Defendant has his children in the car while driving while intoxicated allows him to amend the complaint for punitive damages for his injuries. Even though driving while intoxicated with children in the car is particularly "evil and reprehensible," this fact has no bearings on Plaintiff's injuries or causation for the accident.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Plaintiff's motion is DENIED, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court, DENYING Plaintiff's motion to amend the complaint. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: December 8, 2017

Catskill, New York

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

1) Notice of motion, dated October 19, 2017; affidavit of Eli B. Basch, Esq., with annexed exhibits, dated October 19, 2017;

2) Affidavit in opposition of Samantha M. Fox, Esq., dated October 26, 2017; and

3) Reply affidavit, of Eli B. Basch, Esq., with annexed exhibits, dated November 1, 2017.