Fonda v. 157 East 74th Co.

158 A.D.2d 297, 550 N.Y.S.2d 705, 1990 N.Y. App. Div. LEXIS 1075

Opinion

In this property damage action, which arises out of appellant’s excavation for the foundation of a new high-rise building, respondents claim that appellant’s improper underpinning of their townhouses, situated on either side of the excavation, caused them to sustain substantial and costly structural damage. During lengthy and protracted depositions, testimony was given alleging that appellant had deliberately and knowingly violated accepted industry practice by taking dangerous shortcuts in the underpinning process.

Upon completion of depositions on June 30, 1988, respondents drafted an amended complaint, on the basis of their newly obtained information, to assert a claim for punitive damages on the ground appellant had acted with reckless indifference to public safety. The proposed amended complaint was served on all counsel on July 8, 1988, and a motion to permit the amendment, pursuant to CPLR 3025 (b), was made on or about July 22, 1988. Appellant appeals from the grant of this motion. We affirm.

The circumstances presented do not support appellant’s contention that respondents should be barred from amending the complaint because of gross laches or legal insufficiency. Unlike the cases cited by appellant, the within respondents had not been long aware of the facts underlying the amendment. (See, e.g., Foster Co. v Terry Contr., 25 AD2d 721.) Further, it was not unreasonable for respondents to have awaited the completion of discovery before moving to amend the complaint. (See, Nab-Tern Constructors v City of New York, 123 AD2d 571.)

With respect to the legal sufficiency of respondents’ claim for punitive damages, gross negligence and reckless conduct, such as that in which appellant is alleged to have engaged, will suffice to warrant consideration of punitive damages by the trier of fact. (Giblin v Murphy, 97 AD2d 668, 671.) Concur —Kupferman, J. P., Aseh, Kassal, Ellerin and Wallaeh, JJ.