Opinion
18308/04.
Decided July 12, 2005.
Defendant moves pursuant to CPLR § 3212 and 3211(a)(7) for partial summary judgement dismissing plaintiff's second cause of action and striking plaintiff's claim for punitive damages on the basis the plaintiff fails to state a cause of action for such relief.
On June 10, 2004, plaintiff commenced this action by filing a summons and verified complaint. On August 12, 2004, defendant's answer was interposed. Plaintiff's complaint alleges twenty allegations of fact. The first seventeen allegations support plaintiff's cause of action for compensatory damages for personal injuries suffered in an automobile accident. The last three allegations are used to support a second cause of action for punitive damages caused by the defendant's allegedly criminal conduct.
Plaintiff's claim alleges that he was struck and injured by a vehicle driven by the defendant while he was skating on inline skates in the right-hand lane of Second Avenue, Brooklyn, New York. Based on deposition testimony of the plaintiff and defendant the following facts are undisputed. On the morning of October 24, 2003, plaintiff and defendant were traveling southbound along Second Avenue between 10th and 9th Street in Brooklyn, New York. Immediately after the alleged impact, defendant stopped his vehicle, had a short conversation with the plaintiff, and returned to his vehicle and left the scene before the police arrived. Defendant did not exhibit his license or insurance identification card nor give any contact information to the plaintiff. Defendant does not concede that he struck the plaintiff with his vehicle. He does contend, however, that even if the plaintiff's allegations of fact in the complaint are true, they do not support a separate cause of action for punitive damages or an award for same as a matter of law.
Plaintiff's complaint contains a second cause of action for punitive damages for the personal injury he allegedly sustained. It is well settled that no separate cause of action for punitive damages lies for pleading purposes ( Paisley v. Coin Device Corp. 5 AD3d 748-749 [2nd Dept. 2004]). A demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action ( Yong Wen Mo v. Gee Ming Chan, 17 AD3d 356-359 [2nd Dept. 2005]). Therefore, a claim for punitive damages is not a separate cause of action but merely constitutes an element of single total claim for damages. ( Benjamin Park v. YMCA of Greater New York Flushing, 17 AD3d 333 [2nd Dept. 2005]).
When allegations pertaining to compensatory damages are contained in a portion of a complaint denoted as a second cause of action for punitive damages, it is to be treated as part of the first cause of action ( Hobush v. Consolidated Rail Corp., 117 AD2d 927 [3rd Dept. 1986]). The court will therefore construe the three allegations contained in that part of the complaint denoted as a second cause of action to be part of plaintiff's first cause of action (see generally, Siegel, NY Practice § 208). Furthermore, the court will treat plaintiff's pleading alleging personal injuries and punitive damages as a single cause of action.
The court now turns to defendant's motion for partial summary judgement motion pursuant to CPLR § 3211(a)(7) seeking to strike the remedy of punitive damages as part of plaintiff's claim. 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 ( Boykin v. Mora, 274 AD2d 441-442 [2nd Dept. 2000]). A court may award punitive damages when a defendant's conduct is so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others ( Dumesnil v. Proctor Schwartz, 199 AD2d 869-870 [3rd Dept. 1993]). The conduct must be so flagrant as to transcend mere carelessness ( Frenya by Frenya v. Champlain Val. Physicians' Hosp. Med. Ctr., 133 AD2d 1000 [3rd Dept. 1987]).
Vehicle and Traffic Law § 600(1)(a) pertains to leaving scene of an incident without reporting and provides as follows:
Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property, not including animals, of another, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his name, residence, including street and number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy, and license number to the party sustaining the damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he shall report the same as soon as physically able to the nearest police station, or judicial officer.
In the case of Rahn v. Carkner, 241 AD2d 585 [3rd Dept. 1997], the Appellate Division Third Department affirmed the trial court's order granting plaintiff leave to amend the complaint to add a claim for punitive damages. The underlying allegations of fact were that the defendant struck the plaintiff's car and in an unsuccessful attempt to illegally flee the scene of the accident, the defendant struck the plaintiff's car a second time resulting in the plaintiff's injury. In an earlier decision issued in 1993, the Appellate Division Third Department acknowledged that leaving the scene of an accident might be considered reprehensible. The court, however, refused to allow plaintiff to amend the pleading to include an element of punitive damages stating that such conduct occurring after the accident did not proximately cause plaintiff's injuries and did not support an award for punitive damages ( Taylor v. Dyer, 190 AD2d 902-904 [3rd Dept. 1993]). The underlying facts of the Rahn and Taylor cases involve a plaintiff injured in a motor vehicle by a defendant who allegedly left the scene without leaving contact or insurance information. What distinguishes the two is that in Rahn the injury was caused by the reprehensible act of striking the plaintiff while attempting to leave the scene while in Taylor the injury occurred before defendant left the scene and was not caused by that act.
Here the plaintiff's claim for punitive damages is based upon the allegation that the defendant left the scene of the accident in wanton disregard of plaintiff's condition after the injury and willfully refused to provide his contact information, in violation of Vehicle and Traffic Law § 600 (1)(a). Assuming the truth of plaintiff's claim, he has alleged injury in the underlying action, but did not and cannot show that the defendant's post collision conduct was the proximate cause of his injuries (see Taylor v. Dyer, 190 AD2d 902-904 [3rd Dept. 1993]. Therefore, the second cause of action is dismissed, and defendant's motion for partial summary judgement to strike the element of punitive damages is granted.
The foregoing constitutes the decision and order of this court.