Lewis v. DiDonna

• Decision Date: 30 May 2002
• Citation: 294 A.D.2d 799,743 N.Y.S.2d 186
• Court: New York Supreme Court — Appellate Division
• Parties: IRIS LEWIS, Respondent,<BR>v.<BR>AL DIDONNA et al., Appellants.

294 A.D.2d 799

743 N.Y.S.2d 186

IRIS LEWIS, Respondent,

v.AL DIDONNA et al., Appellants.

Lahtinen, J.

Decided May 30, 2002.

Mercure, J.P., Peters, Spain and Carpinello, JJ., concur.

Lahtinen, J.

In November 1997, plaintiff brought her dog of nine years to a veterinarian and was given a prescription for an anti-inflammation drug, Feldene, to treat the dog's condition. The prescription was filled at defendant Eckerd Drug Store of Stone Ridge^[1] by defendant Al DiDonna, a licensed pharmacist. The label on the prescription bottle directed that the Feldene was to be administered "1 pill twice daily." Plaintiff's dog became ill and tests on the dog revealed that it had suffered renal damage due to Feldene toxicity. Plaintiff then discovered that the Feldene prescription written by the veterinarian called for one pill every other day and that the prescription bottle had been mislabeled. After her dog died, the autopsy revealed that the Feldene was a probable cause of death.

Plaintiff commenced this action against defendants asserting several causes of action and seeking punitive damages. After joinder of issue, defendants moved pursuant to CPLR 3211 (a) (7) to dismiss plaintiff's causes of action sounding in consumer fraud and loss of companionship for failure to state a cause of action and for summary judgment dismissing her claim for punitive damages. Plaintiff cross-moved to compel discovery and for dismissal of several of defendants' affirmative defenses. Supreme Court refused to dismiss the consumer fraud cause of action, denied defendants summary judgment dismissing the punitive damages claim, and dismissed plaintiff's cause of action for loss of companionship, but stated that "[p]laintiff shall, however, be allowed to introduce proof of loss of companionship at the time of trial with respect to the issue of damages."^[2] Defendants appeal.

Generally, after issue is joined, the appropriate procedural tool for accelerated judgment is a motion for summary judgment (see, Kavoukian v Kaletta, 294 AD2d 646, 647). Where a motion pursuant to CPLR 3211 (a) is made postanswer, a court may notify the parties that the motion will be accorded summary judgment status (see, CPLR 3211 [c]). Additionally, where the parties chart a summary judgment course (see, Mihlovan v Grozavu, 72 NY2d 506, 508) and lay bare their proof, the court may treat a CPLR 3211 (a) motion as one for summary judgment. On this record, however, there is no basis to treat defendants' dismissal motion directed to plaintiff's consumer fraud cause of action as one for summary judgment, and the motion must be denied since plaintiff's allegations fit within a cognizable cause of action (see, CPLR 3211 [e]; Ferran v Belawa, 241 AD2d 841, 842; Sand v Chapin, 238 AD2d 862, 863; see also, Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26) and are not "inherently incredible or flatly contradicted by documentary evidence" (Quail Ridge Assoc. v Chemical Bank, 162 AD2d 917, 918, lv dismissed 76 NY2d 936).

Turning to the portion of defendants' motion addressed to the claim for punitive damages, denominated a motion for partial summary judgment and treated as such by Supreme Court, defendants present no evidence and merely challenge the legal sufficiency of the allegations of the complaint. We will therefore treat the motion as one seeking dismissal of the prayer for punitive damages based on the failure of the complaint to state a claim therefor (see, e.g., Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 614). Viewed as such, we conclude that the allegations of the verified complaint, as supplemented by the affidavit in opposition to defendants' motion, sufficiently allege defendants' wanton and reckless disregard of plaintiff's rights to...