| 17 E. 96th St. Owners Corp. v Madison 96th St. Assoc., LLC |
| 2016 NY Slip Op 07278 |
| Decided on November 3, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 3, 2016
Friedman, J.P., Renwick, Feinman, Gische, Kapnick, JJ.
2145N 108695/04
v
Madison 96th Street Associates, LLC, Defendant-Respondent, 21 East 96th Street Condominium, Defendant. [And a Third Party Action]
Charles E. Boulbol, P.C., New York (Charles E. Boulbol of counsel), for appellant.
Schoeman, Updike & Kaufman LLP, New York (Charles B. Updike of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 8, 2015, which denied plaintiff's motion for leave to serve and file a third amended complaint, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion by denying plaintiff leave to amend its complaint on the eve of trial (see Reuling v Consolidated Edison Co. of N.Y., Inc., 138 AD3d 439 [1st Dept 2016]). There is no evidence in the record to suggest that defendant's conduct rose to the level of warranting the imposition of punitive damages (see Walker v Sheldon, 10 NY2d 401, 405 [1961]). Furthermore, insofar as plaintiff seeks to add a claim for disgorgement of profits, the court correctly determined that profits realized by defendant are not the proper gauge of damages in a trespass action, and that the proper measure is the lesser of the decline in market value and the cost of restoration (see Jenkins v Etlinger, 55 NY2d 35, 39 [1982]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 3, 2016
CLERK