Jones v Turner

[*1] Jones v Turner 2023 NY Slip Op 50535(U) Decided on June 1, 2023 Supreme Court, Kings County Maslow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2023
Supreme Court, Kings County

Chavonne Jones, Plaintiff,

against

Corey M. Turner, Defendant.



Index No.: 510877/2020


Gjoni Law, New York City (Stavros S. Skenderis of counsel), for plaintiff.

Morris Duffy Alonso Faley & Pitcoff, New York City (Emily Mann of counsel), for defendant.

Aaron D. Maslow, J.

The following numbered papers were read on these motions:

NYSCEF Doc No. 12: Notice of Motion, submitted by Defendant
NYSCEF Doc No. 13: Affirmation in Support, submitted by Defendant
NYSCEF Doc No. 14: Certification of Signature, submitted by Defendant
NYSCEF Doc No. 15: Exhibit A—Summons and Complaint
NYSCEF Doc No. 16: Exhibit B—Defendant's Answer
NYSCEF Doc No. 38: Affirmation in Opposition, submitted by Plaintiff
NYSCEF Doc No. 39: Exhibit A—Verified Bill of Particulars
NYSCEF Doc No. 40: Exhibit B—Plaintiff's EBT Transcript
NYSCEF Doc No. 41: Affirmation of Service, submitted by Plaintiff
NYSCEF Doc No. 42: Affirmation in Reply, submitted by Defendant

Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows.

Background

Plaintiff Chavonne Jones commenced this action for personal injuries allegedly sustained due to the acts of Defendant Corey M. Turner in operating a motor vehicle on February 18, 2020. Plaintiff and Plaintiff's sister (age 13) were passengers in Defendant's vehicle. At the time, Plaintiff and Defendant were in a relationship. An argument ensued between Plaintiff and Defendant, during which Defendant allegedly became violent and physical with Plaintiff. All persons exited the vehicle, at which point Plaintiff's sister did not re-enter it. Plaintiff and [*2]Defendant returned to Defendant's vehicle. Defendant then proceeded to drive away with Plaintiff in the vehicle. The parties proceeded to argue about Defendant leaving without Plaintiff's sister, at which point Defendant stopped the vehicle and Plaintiff attempted to exit it. Plaintiff alleges that while she was exiting the vehicle, Defendant attempted to drive away while her foot was touching the ground, causing Plaintiff's ankle to fracture. (See generally NYSCEF Doc No. 15, complaint ¶¶ 21-27; NYSCEF Doc No. 40, Plaintiff's EBT transcript at 21-64.)

Discussion

Defendant filed the instant motion pursuant to CPLR §3211(a)(7), to strike a claim of punitive damages against Defendant on the ground that it fails to state a cause of action. Defendant argues that Plaintiff has failed to allege or plead conduct rising to the requisite level of moral culpability to warrant punitive damages.

Pertinent sections of Plaintiff's complaint (NYSCEF Doc No. 15, complaint at 7-8) include the following:

25. That at the aforementioned date and place, the defendant intentionally moved the vehicle recklessly with wanton disregard to the plaintiff's safety thereby resulting in severe and serious personal injuries to the plaintiff.. . .33. Further, the intentional, reckless and wanton conduct and acts of the defendant also entitles the plaintiff to punitive damages in excess of the jurisdictional limits of all lower Courts.

Defendant argues that Defendant's conduct does not rise to the level of actionable conduct for punitive damages, as said claim must be supported by an allegation of evil or reprehensible motives, or of conduct close to criminality (citing Pascazi v Pelton, 210 AD2d 910 [4th Dept 1994]; Camillo v. Greer, 185 AD2d 192, 194 [1st Dept 1992]). Furthermore, pleading requirements for a claim for punitive damages have been considered by the courts to necessitate allegations demonstrating the egregiousness of the defendant's alleged misconduct (citing New York University v Continental Insurance Company, 87 NY2d 308 [1995]; Walker v Sheldon, 10 NY2d 401[1961]). Wherefore, Defendant argues that Plaintiff does not have any evidence to prove that Defendant's conduct satisfies the necessary criteria to rise to the level of egregious misconduct.

In opposition, Plaintiff argues that she has pleaded sufficiently to be awarded punitive damages—that Defendant purposely moved the vehicle while Plaintiff was attempting to exit to prevent her from leaving, not only temporarily imprisoning her in the vehicle, but causing serious bodily harm.

Plaintiff further argues that she is not seeking judgment from her complaint at this time; simply that her case proceed to trial for the fact finders to decide whether to grant punitive damages. "There is a clear wanton disregard for the [P]laintiff's well being and more than enough to present the charge to the jury" (NYSCEF Doc No. 38, affirmation in opposition ¶ 26)].

Conduct generally must be so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others and done under circumstances showing heedlessness and utter disregard for the rights and safety of others (e.g., Trudeau v Cooke, 2 AD3d 1133 [3d Dept 2003]; Sweeney v McCormick, 159 AD2d 832 [3d Dept 1990]; 1 NY PJI 2:278).

Defendant's actions here as pleaded in the complaint and supplemented with her EBT testimony can be reasonably interpreted as criminal in nature. Defendant could have been [*3]attempting to unlawfully imprison Plaintiff inside the vehicle when Defendant drove away just as Plaintiff was attempting to flee the vehicle, thereby causing serious injury to the Plaintiff. Defendant's character therefore rises to the level of wantonness and recklessness by engaging in such action against Plaintiff. Defendant showed a conscious indifference and utter disregard of the effect of driving away while Plaintiff's foot was on the ground. It is noted that Defendant did not outrightly dispute the accident as Plaintiff has stated, nor did Plaintiff offer an alternate explanation of the accident as it occurred.

Punitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitutes gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives (see Thomas v Farrago, 154 AD3d 896, 898 [2d Dept 2017], quoting Gravitt v Newman, 114 AD2d 1000 [2d Dept 1985]). Although Defendant's conduct was not aimed at the public generally, it was certainly activated by reprehensive motives, according to Plaintiff's allegations.

Not only did Defendant act with wanton and reckless disregard for Plaintiff by moving the vehicle while Plaintiff was attempting to leave, but Defendant also seized Plaintiff's mobile phone, removed her from the vehicle, and drove away, leaving Plaintiff injured on the ground (NYSCEF Doc No. 40, Plaintiff's EBT Transcript, at 50-56). If true, Defendant thereby committed larceny when he took Plaintiff's mobile phone (see Penal Law §§ 155.25 [petit larceny]; 155.30 [5] [grand larceny in the fourth degree by taking from person of another]). Defendant could potentially face grand larceny charges if the phone is valued over one thousand dollars (see Penal Law § 155.30 [1]).

It is clear from Defendant's conduct, if true, as alleged in the complaint and elaborated upon in Plaintiff's EBT testimony, that he acted with a malicious intent. Additionally, claimed Plaintiff, Defendant's conduct was so reprehensible that she obtained a restraining order against him as a result of this incident (NYSCEF Doc No. 40, Plaintiff's EBT transcript at 11, 72). Regardless of whether Defendant intended to injure Plaintiff to the extent he did by moving his vehicle while Plaintiff's foot was touching the ground (id. at 50-56), it is clear that Defendant intended to harass, annoy or alarm Plaintiff. This is evident when he pushed Plaintiff in the chest outside of the vehicle (id. at 35), as well as when he moved the vehicle when Plaintiff's foot was touching the ground (see Penal Law §§ 120.00 [1] [assault in the third degree with intent to cause injury]; 240.26 [harassment in the second degree]).

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 NY2d 481; Rovello v. Orofino Realty Co., 40 NY2d 633, 634. . . . In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v. Orofino Realty Co., supra, 40 NY2d at 635) and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' (Guggenheimer v. Ginzburg, 43 NY2d 268, 275; Rovello v. Orofino Realty Co., supra, 40 NY2d at 636." (Leon v Martinez, 84 NY2d 83, 88 [1994].) In addition, a court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects (see Quinones v Schaap, 91 AD3d 739 [2d Dept 2012]). Naturally this includes sworn EBT testimony (see Prac Commentaries, CPLR C3211:40, citing CPLR 3211 [c]).

With the complaint's allegations and Plaintiff's sworn deposition testimony being [*4]considered herein, there is substantial evidence to support a conclusion that Defendant acted with wanton and reckless disregard for Plaintiff's wellbeing by driving away as Plaintiff attempted to exit the vehicle. A reasonable person would not put a vehicle in motion while a person was getting out. A reasonable juror could find that the Defendant acted with wanton or malicious intent. Therefore, Plaintiff at this juncture in the action has a plausible claim for requesting punitive damages from Defendant and it will be for the jury to determine contested issues of fact at trial.

Conclusion

Accordingly, it is hereby ORDERED that Defendant's motion to dismiss that portion of Plaintiff's complaint seeking punitive damages is denied.

Dated: June 1, 2023
AARON D. MASLOW
Justice of the Supreme Court
of the State of New York