Kennedy v Vault Leasing

[*1] Kennedy v Vault Leasing 2007 NY Slip Op 51058(U) [15 Misc 3d 1139(A)] Decided on May 23, 2007 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2007
Supreme Court, Richmond County

Dennis Kennedy, Plaintiff,

against

Vault Leasing and Raymond Laraja, Defendants.



100958/05



The attorneys for the plaintiff are:

Hecht Kleeger Pintel & Damashek, Esqs.

275 Madison Avenue - Suite 1100

New York, New York 10016

The attorneys for the defendants are:

Petrocelli & Christy, Esqs.

217 Broadway - Suite 505

New York, New York 10007

Philip G. Minardo, J.

Upon the foregoing papers, that branch of defendants' motion which is for summary judgment dismissing the complaint on the ground that plaintiff has not sustained a "serious injury" as defined in Insurance Law §5102(d) has been withdrawn; the balance of defendants' motion to dismiss plaintiff's cause of action for punitive damages is denied.

This personal injury action arises out of a motor vehicle accident that occurred on November 18, 2004 on the FDR Drive near 112th Street in the City and State of New York. At the time of the accident, plaintiff was the operator of a construction signal truck that was stopped in the right lane of northbound traffic when his vehicle was struck in the rear by defendant Raymond Laraja, who was arrested and charged with operating a motor vehicle while intoxicated. Those charges were dismissed on July 28, 2006, and defendant's driver's license was neither suspended nor restricted. Nevertheless, it is undisputed that this defendant's blood alcohol level was found to be .25 following a breathalyzer test.

In moving for summary judgment dismissing the claim for punitive damages, defendants maintain that the conduct of defendant Laraja does not rise to the level of willful and/or wanton reckless conduct that is required as a matter of law for the imposition of such a severe sanction. In support, defendants urge the court to consider that (1) that defendant Laraja was a surgeon and voluntarily surrendered his medical license as a result of this motor vehicle accident, (2) Defendant Laraja, who is advanced in age, is an upstanding individual with a history of caregiving and public service to the community, (3) he continues to serve the public as a non-salaried professor at Mount Sinai Medical School, (4) he has no prior alcohol related charges, and (5) there is no evidence that he was speeding at the time of the accident. [*2]

Additionally, it is alleged that defendant Laraja's uncontroverted deposition testimony indicates that his conduct was not intentional, wanton or reckless, nor was it fueled by moral turpitude. In this regard, defendants point out that defendant Laraja testified that although he consumed between five (5) and ten (10) alcoholic beverages, in addition to two (2) glasses of wine, between 5:30 and 10:00 p.m. at a dinner for a retiring colleague, he did not feel intoxicated at the time he embarked on his trip home. The accident occurred shortly before midnight when, as he testified at his deposition, he began to feel tired and fell asleep at the wheel.

In opposing the motion, plaintiff maintains that defendant Laraja's conduct on the night of the accident was so reckless as to be the equivalent of a conscious disregard of the rights of others. In support, plaintiff points out that defendant admittedly consumed between five (5) and ten (10) vodka and ice drinks and two (2) glasses of red wine between 5:30 P.M. and 10:00 P.M. at a dinner. Further, defendant Laraja testified after driving for five (5) minutes he began to feel tired, yet "made the conscious decision to keep driving." Approximately ten (10) minutes later defendant Laraja admittedly fell asleep, whereupon the instant motor vehicle accident occurred. It is undisputed the defendant registered a blood alcohol level of .25. Plaintiff further maintains that, in any event, the level of recklessness exhibited by this defendant presents a question of fact for a jury.

It is well settled that "evidence 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", and that each situation must be considered on an individual basis (Taylor v Dyer, 190 AD2d 902, 903 [3rd Dept. 1993]; Sweeney v McCormick, 159 AD2d 832, 834). While the nature of such conduct has been said to require "a high degree of moral culpability" (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203), it need not be intentionally harmful. Nevertheless, the conduct in question must be "grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others" (id. at 201; see Trudeau v Cooke, 2 AD3d 1133, 1134). Thus, "needlessness" and an "utter disregard" for the rights and safety of others must be demonstrated (see Sweeney v McCormick, 159 AD2d at 834)

Consonant with the foregoing principles, it is the opinion of this Court that plaintiff has raised a triable issue of fact, as the trier of fact may conclude based on the evidence that defendant Laraja's conduct and the level of his intoxication may warrant a finding of wanton negligence or reckless conduct. Under the circumstances, the trier of fact may find defendant Laraja completely disregarded the presence of the plaintiff and other users of the highway warranting the imposition of punitive damages. (cf. Guariglia v Price Chopper Operating Co., 38 AD3d 1043; Bondi v Bambrick, 308 AD2d 330; Rinaldo v Mashayekhi, 185 AD2d 435).

Accordingly, it is

ORDERED, that defendants' motion for summary judgment dismissing the claim for punitive damages is denied.

E N T E R, [*3]

Dated: May23, 2007/s/ Philip G. MinardoJ.S.C.