Opinion
No. 21445/2019E
09-27-2019
JANSES L. COLLAZO, Plaintiff, v. SYLVIA ADUSEI and R. R. AGYEMANGM- CLOVINN, . Defendants.
Unpublished Opinion
DECISION AND ORDER
John R. Higgitt, J.
Upon defendants' July 2, 2019 notice of motion and the affirmation and exhibits submitted in support thereof; plaintiffs July 31, 2019 affirmation in opposition; and due deliberation; defendants' motion to dismiss all "non-negligence" claims alleged in the complaint is granted.
Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained as a result of a March 22, 2016 motor vehicle accident. In the complaint, plaintiff alleged that defendants were "negligent, careless and reckless in the ownership, operation, management, maintenance, supervision, use and control of their motor vehicle" (see plaintiffs complaint at para 26 and 28). On April 18, 2019, the defendants joined issue; in their answer they denied, among other things, the allegations of careless and recklessness.
Defendants seek dismissal of the "non-negligence" allegations under CPLR 3211 because the facts and circumstances alleged by plaintiff regarding the accident do not support a finding of any conduct other than negligence. In support of their motion defendants submit the police accident report, which describes the accident as a rear-end collision. Defendants assert that there are no specific allegations in the complaint and no suggestion from the police accident report that defendants committed a reckless act, which allegations would presumably be used to seek punitive damages.
Defendants' motion is, in effect, a motion to strike prejudicial matter from the compliant and is treated as such. Under CPLR 3024, "a party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." In deciding a motion under CPLR 3024(b), the question is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action (see Soumayah v Minnelli, 41 A.D.3d 390 [1st Dept 2007]).
Here, the allegations of "recklessness" are not relevant to plaintiffs cause of action. Recklessness, which entails an intentional act of an unreasonable character in disregard of a known or obvious risk (see Saarinen v Kerr, 84 N.Y.2d 494, 501 [1994]), is not an element of a negligence claim and would only serve as a basis for an award of punitive damages. Nothing in the complaint or police accident report indicates that defendants engaged in the type of egregious conduct necessary to support an award of such damages (see generally Ross v Louise Wise Servs., Inc., 8 N.Y.3d 478, 489 [2007]). Moreover, punitive damages are rarely appropriate in motor vehicle actions (see generally IB NY PJI3d 2:278 ["Automobile Accidents"] [2019]).
Plaintiff s failed to submit timely opposition to defendants' motion (see Senise v Mackasek, 174 A.D.2d 522, 551 [1st Dept 1991]; Romeo v Ben-Soph Food Corp., 146 A.D.2d 688, 690 [2d Dept 1989]). Defendants' motion was returnable on July 31,2019; however, in contravention of the demand in defendants' notice of motion and CPLR 2214(b), plaintiff served the opposition on July 31, 2019. In any event, plaintiff offered no argument or evidence suggesting that an allegation of recklessness is relevant to this action. Of course, if discovery produces evidence supporting allegations of recklessness, plaintiff is free to move to amend the complaint to include such allegations (see Soumayah v Minnelli, 41 A.D.3d at 393).
Plaintiff s allegations of "carelessness" are unnecessary surplusage that are covered by plaintiffs allegations of negligence.
Accordingly, it is
ORDERED, that defendants' motion, in effect, to strike the allegations of recklessness and carelessness from the complaint are granted and those allegations are stricken.
The parties are reminded of the January 31,2020 compliance conference before the undersigned.
This constitutes the decision and order of the court.