Gerulaitis v. Recreational Concepts, Inc.

295 A.D.2d 562, 744 N.Y.S.2d 710, 2002 N.Y. App. Div. LEXIS 6733

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 2002
• Status: Published

Opinion

—In an action to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated April 28, 2000, which granted the separate motions of the defendants Synergy Gas Corporation and Teledyne Industries, Inc., sued herein as Teledyne Laars, Inc., for partial summary judgment dismissing the claim for punitive damages insofar as asserted against them.

Ordered that the appeal from so much of the order as granted the motion of the defendant Teledyne Industries, Inc., sued herein as Teledyne Laars, Inc., is dismissed as academic, as the plaintiff discontinued the action against that defendant by stipulation dated August 20, 2001; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

It is well settled that punitive damages are warranted where “the conduct of the party being held liable evidences a high degree of moral culpability * * * or * * * is so flagrant as to transcend mere carelessness * * * 0r * * * constitutes willful or wanton negligence or recklessness” (Rey v Park View Nursing Home, 262 AD2d 624, 627). Further, for a plaintiff to hold an employer liable for punitive damages where liability is vicariously derived from an employee’s acts, the plaintiff must establish that the employer knowingly ordered, participated in, or ratified the conduct of the employee (see Kelleher v F.M.E. Auto Leasing Corp., 192 AD2d 581, 585).

The evidence submitted by the defendant Synergy Gas Corporation (hereinafter Synergy) in support of its motion was sufficient to establish entitlement to partial summary judgment dismissing the claim for punitive damages insofar as asserted against it. In opposition to the motion, the plaintiff failed to present evidence sufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly granted Synergy’s motion for partial summary judgment dismissing the claim for punitive damages insofar as asserted against it. Smith, J.P., Goldstein, Friedmann and McGinity, JJ., concur.