Parker v. Smith

Appellate Division of the Supreme Court of New York

Parker v. Smith

242 A.D.2d 373, 662 N.Y.S.2d 263

Appellate Division of the Supreme Court of the State of New York·Decided August 25, 1997·No. Action No. 1; Action No. 2·Published·Cited by 1 cases

Opinion

In two actions joined for trial, inter alia, for a judgment declaring the rights and duties of the parties with respect to medical insurance coverage, the third-party defendant in Action No. 2 appeals from so much of an order of the Supreme Court, Nassau County (Roberto, J.), entered June 6, 1996, as granted that branch of the third-party plaintiffs’ motion which was for leave to amend the third-party complaint by adding a demand for punitive damages.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the third-party plaintiffs’ motion which was for leave to amend the third-party complaint by adding a demand for punitive damages is denied.

Although leave to amend a pleading is generally liberally granted (see, McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; CPLR 3025 [b]), if the proposed amendment is patently lacking in merit or its lack of merit is clear and free from doubt, it will not be permitted and leave should be denied as a matter of law (see, McKiernan v McKiernan, 207 AD2d 825; Staines v Nassau Queens Med. Group, 176 AD2d 718).

In the instant case, the third-party plaintiffs failed to present “ ‘sufficient evidentiary allegations of ultimate facts of a fraudulent and deceitful scheme in dealing with the general public’ ” (Valis v Allstate Ins. Co., 132 AD2d 658, 659, quoting Holoness Realty Corp. v New York Prop. Ins. Underwriting Assn., 75 AD2d 569, 570), or conduct “so ‘willful and wanton’, outrageously immoral, or criminal as to warrant an award of punitive damages” (Kelly v DeFoe Corp., 223 AD2d 529, 530; see, Gilbin v Murphy, 73 NY2d 769; Walker v Sheldon, 10 NY2d 401; Sforza v Health Ins. Plan, 210 AD2d 214).

[374] Accordingly, the Supreme Court erred in granting that branch of the third-party plaintiffs’ motion which was for leave to amend the third-party complaint by adding a demand for punitive damages. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

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In two actions joined for trial, inter alia, for a judgment declaring the rights and duties of the parties with respect to medical insurance coverage, the third-party defendant in Action No. 2 appeals from so much of an order of the Supreme Court, Nassau County (Roberto, J.), entered June 6, 1996, as granted that branch of the third-party plaintiffs’ motion which was for leave to amend the third-party complaint by adding a demand for punitive damages.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the third-party plaintiffs’ motion which was for leave to amend the third-party complaint by adding a demand for punitive damages is denied.

Although leave to amend a pleading is generally liberally granted (see, McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; CPLR 3025 [b]), if the proposed amendment is patently lacking in merit or its lack of merit is clear and free from doubt, it will not be permitted and leave should be denied as a matter of law (see, McKiernan v McKiernan, 207 AD2d 825; Staines v Nassau Queens Med. Group, 176 AD2d 718).

In the instant case, the third-party plaintiffs failed to present “ ‘sufficient evidentiary allegations of ultimate facts of a fraudulent and deceitful scheme in dealing with the general public’ ” (Valis v Allstate Ins. Co., 132 AD2d 658, 659, quoting Holoness Realty Corp. v New York Prop. Ins. Underwriting Assn., 75 AD2d 569, 570), or conduct “so ‘willful and wanton’, outrageously immoral, or criminal as to warrant an award of punitive damages” (Kelly v DeFoe Corp., 223 AD2d 529, 530; see, Gilbin v Murphy, 73 NY2d 769; Walker v Sheldon, 10 NY2d 401; Sforza v Health Ins. Plan, 210 AD2d 214).

[374] Accordingly, the Supreme Court erred in granting that branch of the third-party plaintiffs’ motion which was for leave to amend the third-party complaint by adding a demand for punitive damages. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

Parker v. Smith, 242 A.D.2d 373, 662 N.Y.S.2d 263 (N.Y. Ct. App. 1997).

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