Hall v. Rite Aid Corp.

Appellate Division of the Supreme Court of New York

Hall v. Rite Aid Corp.

37 A.D.3d 1160, 830 N.Y.S.2d 419

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 2007

StatusPublished

Cited by2 cases

This text of 37 A.D.3d 1160 (Hall v. Rite Aid Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hall v. Rite Aid Corp., 37 A.D.3d 1160, 830 N.Y.S.2d 419 (N.Y. Ct. App. 2007).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered August 12, 2005 in a personal injury action. The order denied with prejudice defendants’ mo[1161]*1161tion for dismissal/summary judgment dismissing plaintiff’s claim for punitive damages.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by providing that the motion is denied without prejudice and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained after taking medication provided to her by defendants upon filling her prescription. The complaint alleges that defendants were negligent in filling plaintiff’s prescription with a drug that was 10 times the strength of that prescribed. The complaint further alleges that plaintiff warned the pharmacist that the pills did not look similar in size or color to the ones she had been taking and that defendants nevertheless failed to confirm the accuracy of the prescription or to compare the suspect prescription to the reference materials available at the pharmacy. The complaint asserted that the negligence of defendants was so egregious that it rose to the level of wanton and reckless conduct meriting an award of punitive damages. Defendants moved, pursuant to CPLR 3211 (a) (7) and 3212, for “dismissal/summary judgment dismissing plaintiff’s claim for punitive damages.” Supreme Court denied defendants’ motion with prejudice. We conclude that the court properly denied the motion. In light of the fact that no discovery had been undertaken prior to the motion, however, we further conclude that the motion should have been denied without prejudice (see generally Welch Foods v Wilson, 277 AD2d 882, 883 [2000]; McNeil v Wagner Coll., 246 AD2d 516). We therefore modify the order accordingly. Present— Gorski, J.P, Martoche, Smith and Green, JJ.

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Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered August 12, 2005 in a personal injury action. The order denied with prejudice defendants’ mo[1161]*1161tion for dismissal/summary judgment dismissing plaintiff’s claim for punitive damages.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by providing that the motion is denied without prejudice and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained after taking medication provided to her by defendants upon filling her prescription. The complaint alleges that defendants were negligent in filling plaintiff’s prescription with a drug that was 10 times the strength of that prescribed. The complaint further alleges that plaintiff warned the pharmacist that the pills did not look similar in size or color to the ones she had been taking and that defendants nevertheless failed to confirm the accuracy of the prescription or to compare the suspect prescription to the reference materials available at the pharmacy. The complaint asserted that the negligence of defendants was so egregious that it rose to the level of wanton and reckless conduct meriting an award of punitive damages. Defendants moved, pursuant to CPLR 3211 (a) (7) and 3212, for “dismissal/summary judgment dismissing plaintiff’s claim for punitive damages.” Supreme Court denied defendants’ motion with prejudice. We conclude that the court properly denied the motion. In light of the fact that no discovery had been undertaken prior to the motion, however, we further conclude that the motion should have been denied without prejudice (see generally Welch Foods v Wilson, 277 AD2d 882, 883 [2000]; McNeil v Wagner Coll., 246 AD2d 516). We therefore modify the order accordingly. Present— Gorski, J.P, Martoche, Smith and Green, JJ.

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Bluebook (online)

37 A.D.3d 1160, 830 N.Y.S.2d 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-rite-aid-corp-nyappdiv-2007.

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