Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” (Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 ; see Sharapata v. Town of Islip, 56 N.Y.2d 332, 335, 452 N.Y.S.2d 347, 437 N.E.2d 1104 ; Walker v. Sheldon, 10 N.Y.2d 401, 404, 223 N.Y.S.2d 488, 179 N.E.2d 497 ; Western N.Y. Land Conservancy, Inc. v. Cullen, 66 A.D.3d 1461, 1463, 886 N.Y.S.2d 303 ). Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages (see Rodgers v. Duffy, 95 A.D.3d 864, 866–867, 944 N.Y.S.2d 175 ; D'Angelo v. Litterer, 77 A.D.3d 1373, 1374, 907 N.Y.S.2d 917 ; Trudeau v. Cooke, 2 A.D.3d 1133, 1134, 769 N.Y.S.2d 322 ; Deon v. Fortuna, 283 A.D.2d 388, 389, 724 N.Y.S.2d 450 ). However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others (Schragel v. Juszczyk, 43 A.D.3d 1375, 1375, 844 N.Y.S.2d 532 ; see Parkhill v. Cleary, 305 A.D.2d 1088, 1089, 759 N.Y.S.2d 262 ; Taylor v. Dyer, 190 A.D.2d 902, 903, 593 N.Y.S.2d 122 ; Sweeney v. McCormick, 159 A.D.2d 832, 834, 552 N.Y.S.2d 707 ; see also Deon v. Fortuna, 283 A.D.2d at 389, 724 N.Y.S.2d 450 ).
The Second and Third Departments of the Appellate Division have established that intoxication while driving does not justify punitive damages on its own. Deon v. Fortuna, 724 N.Y.S.2d 450, 451 (App.Div. 2d Dep't 2001); Sweeney v. McCormick, 552 N.Y.S.2d 707, 709 (App.Div. 3d Dep't 1990). Other New York courts have held to the contrary.
However, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the demand for punitive damages. Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives ( see Felton v. Tourtoulis, 87 A.D.3d 983, 984, 929 N.Y.S.2d 493;Aronis v. TLC Vision Ctrs., Inc., 49 A.D.3d 576, 577, 853 N.Y.S.2d 621). Evidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages ( see Deon v. Fortuna, 283 A.D.2d 388, 389, 724 N.Y.S.2d 450;Boykin v. Mora, 274 A.D.2d 441, 442, 711 N.Y.S.2d 904). Here, there is no other evidence to indicate that Duffy, Jr., acted with evil or reprehensible motives, or so recklessly or wantonly as to warrant an award of punitive damages.
Supreme Court properly denied that part of plaintiffs motion seeking leave to amend the complaint to add a claim for punitive damages. "[T]he fact that defendant pleaded guilty to driving while intoxicated `is insufficient by itself to justify the imposition of punitive damages'" ( Schragel v Juszczyk, 43 AD3d 1375, 1375), and plaintiff failed to allege additional facts demonstrating that "defendant acted so recklessly or wantonly as to warrant an award of punitive damages" ( Deon v Fortuna, 283 AD2d 388, 389). The court also properly denied that part of plaintiffs motion seeking to compel defendant to produce her hospital toxicology report from the date of the accident inasmuch as defendant has not waived the physician-patient privilege with respect to that report ( see Dillenbeck v Hess, 73 NY2d 278, 287-288).
Punitive damages are "intended as punishment for gross misbehavior for the good of the public" (Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 203). While intentional conduct is not a mandatory showing for punitive damages, the conduct generally must be "so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" (Rinaldo v. Mashayekhi, 185 A.D.2d 435, 436; see Evans v. Stranger, 307 A.D.2d 439, 440-441). Well-settled precedent instructs that intoxication alone does not open the door for punitive damages and that each situation must be considered on a case-by-case basis (see Sweeney v. McCormick, 159 A.D.2d 832, 834; see also Deon v. Fortuna, 283 A.D.2d 388; Taylor v. Dyer, 190 A.D.2d 902, 903-904; Rinaldo v. Mashayekhi, supra at 436). Here, plaintiff had been in the same drinking establishment with Cooke prior to the accident.
"Driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in "wanton and reckless" conduct evincing heedlessness and an utter disregard for the safety of others. See, Schragel v. Juszczyk, 43 A.D.3d 1375, 1375, 844 N.Y.S.2d 532 (2007); seeParkhill v. Cleary, 305 A.D.2d 1088, 1089, 759 N.Y.S.2d 262 (2003); Taylor v. Dyer, 190 A.D.2d 902, 903, 593 NY.S.2d 122(1993); Sweeney v. McCormick, 159 A.D.2d 832, 834, 552 NY.S.2d 707 (1990); see also Deon v. Fortuna, 283 A.D.2d at 389, 724 NY.S.2d 450 (2001). An evaluation of whether punitive damages are warranted must be made "on a case-by-case basis taking into account the nature of the actor's conduct and the level of his intoxication."
The standard of proof for an award of punitive damages in the Second Department is clear and convincing evidence (Randi A. J. v Long Is. Surgi-Center,46 AD3d 74, 842 NYS2d 2d 558; Orange & Rockland Util. v Muggs Pub, 292 AD2d 580, 739 NYS2d 610 [2d Dept 2002]). Evidence that a defendant was driving while intoxicated, unaccompanied by additional evidence that the defendant engaged in wanton or reckless conduct, is insufficient to support an award of punitive damages (Chiara v Dernago,128 AD3d 999, 11 NYS 3d 96 [2d Dept 2015]; Rodgers v Duffy, 95 AD3d 864, 944 NYS 2d 175 [2d Dept 2012]; Deon v Fortuna,283 AD2d 388, 389, 724 NYS2d 450 [2d Dept 2001]). Inquiry must be made on a casc-by-case basis to account for the nature of the wrongdoer's conduct and the level of intoxication (id).
The conduct need not be intentional and it is sufficient if it is so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others (Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 615). While driving while intoxicated is insufficient by itself to justify the imposition of punitive damages (Deon v. Fortuna, 283 A.D.2d 388, 724 N.Y.S.2d 450), the trier of the facts may consider the level of intoxication, the speed of the vehicle and the circumstances of the accident when determining to award punitive damages.