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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2016
• Docket: 2145N 108695/04
• Status: Published

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 the cost of restoration (see Jenkins v Etlinger, 55 NY2d 35, 39 [1982]).

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