Diarra v NJS Carpentry

Diarra v NJS Carpentry 2016 NY Slip Op 03098 Decided on April 21, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 21, 2016
Tom, J.P., Acosta, Richter, Manzanet-Daniels, Gesmer, JJ.
916N 114010/05

[*1]Lassina Diarra, Plaintiff-Respondent,

v

NJS Carpentry, et al., Defendants-Appellants. NJS Carpentry, et al., Third-Party Plaintiffs-Appellants, Richard Radna, M.D., Third-Party Defendant.

Kaufman Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for appellants.

The Flomenhaft Law Firm, PLLC, New York (Benedene Cannata of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 12, 2014, which granted plaintiff's motion for leave to amend the complaint to include a claim for punitive damages, unanimously affirmed, without costs.

According to a police report, at the time defendant Peter Ferentinos's vehicle rear-ended plaintiff's vehicle at an intersection, defendant had a blood alcohol level of 0.27% and was visibly intoxicated. In addition, Ferentinos testified during his deposition that on the evening of the accident, he consumed alcohol in New Jersey and then drove to Manhattan, where he collided with plaintiff's vehicle. Defendant claims to have no recollection of the color or model of the car he struck, or anything the police asked or said to him at the time of the accident. Under these circumstances, plaintiff's proposed claim for punitive damages is not devoid of merit (see Silvin v Karwoski, 242 AD2d 945 [4th Dept 1997]; see also Bondi v Bambrick, 308 AD2d 330 [1st Dept 2003]; Chiara v Dernago, 128 AD3d 999, 1003 [2d Dept 2015]). Furthermore, plaintiff's [*2]delay in seeking leave to amend does not warrant denial of the motion inasmuch as there is no indication that defendants are prejudiced (see Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 21, 2016

CLERK