Morrell v. Gorenkoff

Dec 4, 2000
Versions:278 A.D.2d 210
717 N.Y.S.2d 907
2000 N.Y. App. Div. LEXIS 12525

In an action to recover damages for dental malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 21, 1999, as granted those branches of the defendant’s motion pursuant to CPLR 3211 (a) (7) which were to dismiss the second cause of action sounding in prima facie tort and the claim for punitive damages.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly dismissed the plaintiffs cause of action sounding in prima facie tort, as- it alleged negligent treatment of the plaintiff but failed to allege that the defendant’s sole motivation was “disinterested malevolence” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333; Curiano v Suozzi, 63 NY2d 113, 118). Further, the defendant’s alleged conduct did not constitute gross recklessness, was not wanton or malicious, and was not activated by evil or reprehensible motives, as is required to support an award of punitive damages (see, Walker v Sheldon, 10 NY2d 401; Spinosa v Weinstein, 168 AD2d 32, 42; cf, Sultan v Kings Highway Hosp. Ctr., 167 AD2d 534). Bracken, J. P., Thompson, Sullivan and McGinity, JJ., concur.