Opinion
Index No. 810150/2021E
01-04-2022
ANDREA R. CORDERO, Plaintiff(s), v. BEST BUY CO., INC., and "JOHN DOE", first and last names being; fictitious, Defendant(s).
Unpublished Opinion
Present: HON ALISON TUITT, Justice.
The following papers numbered 1-3, Read oh this Defendant's Best Buy's Motion to Dismiss pursuant to CPLR§ 3211 (a)(7) and Plaintiffs Cross-Motion for Default Judgment
On Calendar of 9/09/2021
Notice of Motion - Affirmation, Affidavits and Exhibits 1__, Affirmation in Opposition - Memorandum, Affirmation, Affidavit, and Exhibits 2 __.
Notice of Cross-Motion - Affirmation, Affidavits and Exhibits 3 ___.
Upon the foregoing papers. Defendants, Best Buy's Motion to Dismiss pursuant to CPLR .§ 3211(a)(7) and Plaintiff s Cross-Motion for Default Judgment are consolidated for purposes Of this decision. For the reasons set forth herein, Defendant's motion is granted and Plaintiffs cross-motion is denied.
This is a personal injury action to recover damages for the alleged injuries sustained due to Defendant's employee. Plaintiff alleges that on December 29, 2020, while at the Best Buy store located at 402 East Fordham Road in Bronx, New York, she was "physically assaulted" by a Best Buy employee/security personnel, and that because Of the alleged incident Best Buy was: negligent in the hiring, training, supervision and retention of the "security services provided" in said store. Plaintiff commenced the herein action with the filing of a Summons and Complaint on July 20, 2021. On August 18,2021, Defendant Best Buy filed the herein motion to dismiss Plaintiffs fourth cause of action pursuant to CPLR §3211(a)(7).
Defendant Best Buy argues that the herein motion to dismiss pursuant: to CPLR § 3211(a)(7) should be granted as there is no independent cause of action for punitive damages which Plaintiff has requested in her complaint. Defendant argues that case law has "well-established" a party cannot request punitive damages as a cause of action for pleading purposes. Moreover, Defendant states punitive damages is awarded to vindicate a public right not ah alleged private wrong as Plaintiff is claiming.
Plaintiff reiterates statements within its Complaint in support Of its opposition to Defendant Best Buy's motion. Plaintiff states Defendant Best Buy was negligent and that the Court have held if said harm shows an utter disregard for the safety and right of other punitive damages may be imposed. Plaintiff argues that "if the aforementioned allegations are deemed true, which they must be at this juncture, the plaintiff has correctly pled an entitlement to punitive damages."
Plaintiff also files a cross-motion for default judgment against Defendants Best Buy and John Doe. Plaintiff submits affidavits of service of the pleadings upon Best Buy as a corporation to "Angela" as manager for BEST BUY CO., INC., at the address of: 402 East Fordham Road, Bronx, New York on July 29, 2021; on Randall Umpierre, Intake Specialist for BEST BUY CO., INC. C/O CT Corporation, at the address of: 28 Liberty St, New York, New York 10005 on July 28, 2021 and on Cathy Prescher, Agent for CT Corporation System at the address 1010 Dale Street North, St Paul, MM, on July 29, 2021; Plaintiffs Affidavit in support and an Affirmation of the additional mailing of the good faith letter seeking an Answer to the pleadings dated August 19,2021.
On a motion to dismiss pursuant to CPLR §3211. the pleading is to be afforded a liberal construction (see, CPLR§ 3026). In assessing a motion under CPLR 3211 § (a)(7), the Court determines "whether the proponent of the pleading has a cause of action, not whether he has stated one" (High Definition MRL PC. v. Travelers Cos.. Inc.. 137 A.D.3d 602, 602, 29 N.Y.3d 23 [1st Dept 2016])." It is, however, also axiomatic that factual allegations which fail to state a viable cause of action, that consist of bare legal conclusions, Or that are inherently incredible or unequivocally contradicted by documentary evidence, are not entitled to such consideration, (Leder v. Spiegel, 31 A.D.3d 266, 267 [1st Dept 2006]), The New York Court of
Appeals has consistently said that evidence in an affidavit used by a defendant to attack the sufficiency of a pleading will seldom if ever warrant the relief the defendant seeks unless such evidence conclusively establishes that plaintiff has no cause of action-." (Basis Yield Alpha Fund (Master) v. Goldman Sachs Group. Inc., 115 A03d 128,131 [1st Dept 2014]).
A separate cause of action for punitive damages is not legally cognizable (Jean v. Chinitz. 163 A.D.3d497,498 [1st Dept 2018] citing Steinberg v. Monasch. 85 A.D.2d 403,406, 448 N.Y.S.2d200 [1st Dept 1982]). Rather, punitive damages "are merely an element of the total claim for damages on underlying causes of action," and a separate cause of action based solely upon them must be dismissed (Id.; Green view Trading Co. v. Hershman & Leicher, 108 A.D.2d468,470, 489 N.Y.S.2d 502 [1st Dept 1985]).
Subdivision (a) of CPLR § 320 specifies three ways by which the defendant can appear in the action: (1) service of an answer; (2) making a motion which has the effect of extending the time to answer; or (3) serving a notice of appearance. CPLR § 320. Should the Defendant hot appear, to obtain a default judgment against [that] non-appearing defendant, plaintiff must move for a judgment within one: year of the default and show (1) proof of service of the summons and complaint; (2) proof of the claim; and, (3) proof of the default. CPLR § 3215(f); see also. Woodson v. Mendon Leasing Corp.. 100 H.Y.2d 62,70-71, 790 N.E.2d 1156, 760 N.Y.S.2d 727 (2003).
Based on the above, Defendant's motion to dismiss Plaintiffs fourth cause of action is granted. Though a Plaintiff is afforded a liberal construction of their complaint, the Court has repeated held that "A separate cause of action for punitive damages is not legally cognizable" (Jean v. Chinitz, 163 A.D.3d 497, 498 [1st Dept 2018]. Furthermore, the claim for punitive damages was not cognizable because the complaint lacks "sufficient evidentiary allegations of ultimate facts of a fraudulent and deceitful scheme in dealing with the general public as to imply a criminal indifference to civil obligations." Plaintiff merely claims that Defendant Best Buy engaged in the negligent hiring of an employee for their security team.
Plaintiff's cross motion for default judgment against Defendants Best Buy and John Doe is denied. The Court notes that Plaintiff forwarded a good faith request to Defendants Best Buy for an Answer on August 19, 2021. This letter was forwarded after Defendants Best Buy submitted the August 18; 2021 motion to dismiss, and prior to Plaintiff filing the herein cross-motion on September 2,2021fOr Default Judgment against the aforementioned Defendants. Pursuant of CPLR § 320, Defendant Best Buy had already appeared. Moreover, there is strong public policy in favor of disposing of cases on their merits. Furthermore, Plaintiff has failed to provide proof of service, proof of claim or proof of default for Defendant John Doe. As such, Plaintiff has riot satisfied entitlement of a judgment for default. In light of the above, Plaintiffs cross- motion is denied.
Accordingly, Defendants' motion to dismiss Plaintiff s fourth cause of action is granted, and Plaintiff s cross-motion for a default judgment against Defendants Best Buy and John Doe is denied.
ORDERED that Defendants' motion for an Order pursuant to CPLR §3211(a)(7) dismissing Plaintiffs fourth cause of action is granted; Defendants to serve an Answer within thirty (30) days pursuant to the CPLR;, and it is further
ORDERED that Plaintiffs' cross motion for default judgment against Defendants Best Buy and John Doe is denied.
This constitutes the decision and Order of this Court.