Walden v. Varricchio

Decision Date03 June 2021
Docket Number531356
Citation149 N.Y.S.3d 351,195 A.D.3d 1111
Parties Jeffrey S. WALDEN, Appellant, v. Shane C. VARRICCHIO et al., Respondents.
CourtNew York Supreme Court — Appellate Division

195 A.D.3d 1111
149 N.Y.S.3d 351

Jeffrey S. WALDEN, Appellant,
v.
Shane C. VARRICCHIO et al., Respondents.

531356

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

Calendar Date: April 27, 2021
Decided and Entered: June 3, 2021


149 N.Y.S.3d 352

Allen & Maines, Ithaca (Russell E. Maines of counsel), for appellant.

Goldberg & Segalla LLP, Syracuse (Alexander J. Blood of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

149 N.Y.S.3d 353

Appeals (1) from an order of the Supreme Court (McBride, J.), entered March 10, 2020 in Tompkins County, which denied plaintiff's motion to amend the amended complaint to add a claim for punitive damages, (2) from an order of said court, entered June 8, 2020, which denied plaintiff's motion to reargue and renew, and (3) from an order of said court, entered June 16, 2020, which, among other things, denied plaintiff's cross motion to, among other things, amend the amended complaint.

In early December 2016, plaintiff was a volunteer coach for his 11–year–old son's youth hockey team, which is a member of defendant Finger Lakes Regional Hockey Association, Inc. (hereinafter FLRHA). While plaintiff and the youth hockey team were in the locker room prior to a game, plaintiff showed the son's teammates a picture of his son in front of a Christmas tree wearing a Santa hat and multicolored shorts/underwear without a shirt. After plaintiff recounted the incident at a coaches' meeting, plaintiff's coaching privileges were suspended and, after a hearing, terminated because he had violated the cell phone usage policies of FLRHA and USA Hockey regulating the use of cell phones and other recording devices in the locker room, and for "showing a picture of a partially-dressed minor." The termination was upheld at both the state and national levels. Shortly after the hearing, an incident report was prepared by FLRHA and, upon advice of another volunteer coach who was also a state trooper, delivered to a senior investigator with the State Police for investigation. FLRHA also sent a letter reporting the incident and plaintiff's suspension to the Community Recreation Center. The State Police investigation was closed as unfounded after the senior investigator viewed the photograph in question. The investigator concluded that plaintiff's action in using his cell phone to show a digital image of his son "is not illegal and the digital image itself is in no way of a sexual or pornographic nature, and thus no violation of law was committed."

In September 2017, plaintiff commenced this action against FLRHA, its president and some board members asserting a cause of action for defamation by implication and seeking actual, general and special damages. The complaint was based upon alleged defamatory statements contained in the incident report which, in January 2017, was published to third parties, including a State Police investigator and a lawyer affiliated with USA Hockey.

In May 2019, after extensive discovery and many discovery deadline extensions, plaintiff filed his first motion to amend the complaint to conform to the evidence. In July 2019, plaintiff withdrew the motion, without prejudice, based upon his discovery of several additional allegedly defamatory emails. In August 2019, plaintiff refiled the motion to amend the complaint to allege additional facts based upon the discovered emails and to include a second cause of action for defamation by implication. After the motion was granted, plaintiff's counsel submitted a letter indicating his intention to expand the ad damnum clause to expressly demand punitive damages.

149 N.Y.S.3d 354

Defendants objected, after which plaintiff filed a formal motion in November 2019. Supreme Court denied this motion, by order entered March 10, 2020, finding that the amendment was improperly delayed, would prejudice defendants and was patently devoid of merit. Plaintiff then moved to reargue and renew the motion, which was denied by order entered June 8, 2020. In May 2020, plaintiff, in response to defendants' motion to compel plaintiff to respond to certain discovery, cross-moved to, among other things, amend the amended complaint to include another alleged defamatory public statement made by defendant Anthony D. Prudence, one of FLRHA's board members. By order entered June 16, 2020, Supreme Court, among other things, denied that part of the cross motion as sought to further amend the amended complaint. Plaintiff appeals from the March 10, 2020, June 8, 2020 and June 16, 2020 orders.

Plaintiff initially contends that Supreme Court erred in denying his motion to amend the amended complaint to add a claim for punitive damages. "The decision to grant leave to amend a complaint is within the trial court's sound discretion and will not be disturbed absent a clear abuse of that discretion" ( Place v. Preferred Mut. Ins. Co., 190 A.D.3d 1208, 1212, 141 N.Y.S.3d 528 [2021] [internal quotation marks and citations omitted]). Pursuant to CPLR 3025, a party may amend his or her pleading "at any time by leave of court" and "[l]eave shall be freely given upon such terms as may be just" ( CPLR 3025[b] ). Permission to amend may be granted "before or after judgment to conform [the pleading] to the evidence" ( CPLR 3025[c] ). The rule on a motion for leave to amend a pleading is that, "in the absence of prejudice or surprise resulting directly from the delay in seeking such leave, such applications are to be freely granted unless the proposed amendment is palpably...

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10 cases
  • Petry v. Gillon
    • United States
    • New York Supreme Court Appellate Division
    • 24. November 2021
    ...Inc., 156 A.D.3d 99, 102, 64 N.Y.S.3d 730 [2017] [internal quotation marks, brackets and citation omitted]; accord Walden v. Varricchio, 195 A.D.3d 1111, 1113, 149 N.Y.S.3d 351 [2021] ; see CPLR 3025[b] ). The decision whether to grant leave is within the trial court's discretion and, absen......
  • Carlucci v. Dowd
    • United States
    • New York Supreme Court Appellate Division
    • 11. Mai 2023
    ...and no appeal lies from the denial of reargument (see Piacente v DiNapoli, 198 A.D.3d 1026, 1027 [3d Dept 2021]; Walden v Varricchio, 195 A.D.3d 1111, 1114 n [3d Dept 2021]). Thus, although this aspect of the Allingers' motion presents an interesting legal question, it is not properly befor......
  • Petry v. Gillon
    • United States
    • United States State Supreme Court (New York)
    • 24. November 2021
    ...v People Care Inc., 156 A.D.3d 99, 102 [2017] [internal quotation marks, brackets and citation omitted]; accord Walden v Varricchio, 195 A.D.3d 1111, 1113 [2021]; see CPLR 3025 [b]). The decision whether to grant leave is within the trial court's discretion and, absent an abuse of that disc......
  • Petry v. Gillon
    • United States
    • United States State Supreme Court (New York)
    • 24. November 2021
    ...v People Care Inc., 156 A.D.3d 99, 102 [2017] [internal quotation marks, brackets and citation omitted]; accord Walden v Varricchio, 195 A.D.3d 1111, 1113 [2021]; see CPLR 3025 [b]). The decision whether to grant leave is within the trial court's discretion and, absent an abuse of that disc......
  • Request a trial to view additional results
1 books & journal articles
  • Amending and Supplementing Pleadings and Bills of Particulars
    • United States
    • James Publishing Practical Law Books New York Trial Notebook - Volume 1 Motions before trial
    • 3. Mai 2022
    ...would be prejudicial to defendant—the court properly disallowed any punitive damages claim).] In Walden v Varricchio , 195 AD3d 1111, 149 N.Y.S.3d 351 (3d Dept 2021), Supreme Court did not abuse its discretion in denying the plaintiff’s motion to further amend the complaint to add a claim f......

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