17 East 96th Street Owners Corp. v. Madison 96th Street Associate, LLC

Appellate Division of the Supreme Court of New York

17 East 96th Street Owners Corp. v. Madison 96th Street Associate, LLC

2016 NY Slip Op 7278, 144 A.D.3d 452, 39 N.Y.S.3d 794

Appellate Division of the Supreme Court of the State of New York·Decided November 3, 2016·No. 2145N 108695/04·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 8, 2015, which denied plaintiff’s motion for leave to serve and file a third amended complaint, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion by denying plaintiff leave to amend its complaint on the eve of trial (see Reuling v Consolidated Edison Co. of N.Y., Inc., 138 AD3d 439 [1st Dept 2016]). There is no evidence in the record to suggest that defendant’s conduct rose to the level of warranting the imposition of punitive damages (see Walker v Sheldon, 10 NY2d 401, 405 [1961]). Furthermore, insofar as plaintiff seeks to add a claim for disgorgement of profits, the court correctly determined that profits realized by defendant are not the proper gauge of damages in a trespass action, and that the proper measure is the lesser of the decline in market value and *453 the cost of restoration (see Jenkins v Etlinger, 55 NY2d 35, 39 [1982]).

Concur—Friedman, J.P., Renwick, Feinman, Gische and Kapnick, JJ.

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 8, 2015, which denied plaintiff’s motion for leave to serve and file a third amended complaint, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion by denying plaintiff leave to amend its complaint on the eve of trial (see Reuling v Consolidated Edison Co. of N.Y., Inc., 138 AD3d 439 [1st Dept 2016]). There is no evidence in the record to suggest that defendant’s conduct rose to the level of warranting the imposition of punitive damages (see Walker v Sheldon, 10 NY2d 401, 405 [1961]). Furthermore, insofar as plaintiff seeks to add a claim for disgorgement of profits, the court correctly determined that profits realized by defendant are not the proper gauge of damages in a trespass action, and that the proper measure is the lesser of the decline in market value and *453 the cost of restoration (see Jenkins v Etlinger, 55 NY2d 35, 39 [1982]).

Concur—Friedman, J.P., Renwick, Feinman, Gische and Kapnick, JJ.

17 East 96th Street Owners Corp. v. Madison 96th Street Associate, LLC, 2016 NY Slip Op 7278, 144 A.D.3d 452, 39 N.Y.S.3d 794 (N.Y. Ct. App. 2016).

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Opinion

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