Jean v. Chinitz

• Decision Date: 26 July 2018
• Docket Number: 6281,Index 25953/16E,6283,6282
• Citation: 83 N.Y.S.3d 55,163 A.D.3d 497
• Parties: Lesly JEAN, Plaintiff-Appellant, v. Michael CHINITZ, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 497

83 N.Y.S.3d 55

Lesly JEAN, Plaintiff-Appellant,

v.Michael CHINITZ, et al., Defendants-Respondents.

6281

6282

6283

Index 25953/16E

Supreme Court, Appellate Division, First Department, New York.

Decided July 26, 2018

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York (Gregory Radwan of counsel), for respondents.

Sweeny, J.P., Renwick, Mazzarelli, Kahn, Gesmer, JJ.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered February 16, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action for violation of Judiciary Law § 487 and punitive damages, unanimously affirmed, without costs. Order, same court and Justice, entered July 17, 2017, which granted defendants' motion to dismiss the amended verified complaint, unanimously affirmed, without costs. Order, same court and Justice, entered August 31, 2017, which denied plaintiff's motion to reargue defendants' motion to dismiss the amended verified complaint, and denied plaintiff's motion in the alternative for leave to amend the complaint, unanimously affirmed, without costs.

In its February 16, 2017 order, the motion court correctly dismissed the first cause of action in the original verified complaint to the extent that it alleged a violation of Judiciary Law § 487, because plaintiff failed to plead the essential elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487 ; Doscher v. Mannatt, Phelps & Phillips, LLP, 148 A.D.3d 523, 524, 48 N.Y.S.3d 593 [1st Dept. 2017] ). Accordingly, the portion of the first cause of action in the original verified complaint that alleges a section 487 violation fails to state a cause of action under the statute (see CPLR 3211[a][7] ). Additionally, plaintiff's section 487 cause of action lacks the requisite particularity (see CPLR 3016[b] ; Facebook, Inc. v. DLA Piper LLP [US], 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 [1st Dept. 2015], lv denied 28 N.Y.3d 903, 2016 WL 4820902 [2016] ).

By the same order, the motion court also correctly dismissed plaintiff's separate cause of action for punitive damages as pleaded in the original verified complaint. A separate cause of action for punitive damages is not legally cognizable (see Steinberg v. Monasch, 85 A.D.2d 403, 406, 448 N.Y.S.2d 200 [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 ( Greenview Trading Co. v. Hershman & Leicher, 108 A.D.2d 468, 470, 489 N.Y.S.2d 502 [1st Dept. 1985] ). In any event, the original verified complaint does not allege intentional and malicious treatment of plaintiff or wanton dishonesty suggestive of criminal indifference to civil obligations sufficient to support an award of punitive damages (see Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 73, 9 N.Y.S.3d 201 [1st Dept. 2015] ). Indeed, the pleading merely alleges that defendants were trying to conceal their negligence in having allowed plaintiff's medical malpractice action to be dismissed for noncompliance with discovery orders.

By its July 17, 2017 order, the motion court also correctly dismissed plaintiff's amended verified complaint, albeit not on the proper grounds. Contrary to the motion court's determination, the amended verified complaint was not procedurally barred. Defendant's answer was served and filed on March 7, 2017, and plaintiff's amended verified complaint was filed on March 16, 2017, well within the 20-day period within which plaintiff could timely file an amended pleading without leave of court (see CPLR 3025[a] ). Furthermore, in an amended pleading, a plaintiff "may add any cause of action at all, related or not to what the original pleading contained" (see Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3025 at 87, citing Mendoza v. Mendoza, 4 Misc.2d 1060, 1061, 77 N.Y.S.2d 169 [Sup. Ct., N.Y. County 1947], affd 273 App.Div. 877, 77 N.Y.S.2d 264 [1st Dept. 1948] ). Thus, it is of no moment that the amended verified complaint included a section 487 cause of action, whereas defendant's answer served and filed subsequent to the February 17 order dismissing the section 487 claim included no response to plaintiff's section 487 allegations.

Plaintiff argues that the amended verified complaint added allegations of intentional deceit on the part of defendants, as manifested in the form of email communications from defendants to plaintiff falsely assuring him that his medical malpractice case was still active when, in fact, it had been dismissed due to defendants' failure to comply with three discovery orders of the motion court. Plaintiff further alleges that defendants' deceit injured him by depriving him of the opportunity to take steps to remedy or vacate the dismissal. Plaintiff's theory presumes that the trial court justice presiding in the medical malpractice action would have vacated the dismissal and reinstated the action had plaintiff moved for such relief. Given the circumstances under which the medical malpractice action was dismissed, however, involving three separate discovery orders for provision of medical authorizations and physician reports, each of which was disregarded by plaintiff's attorney, it is, at best, purely speculative that the medical malpractice court would have granted...