Plaintiffs commenced this slander action against defendants by filing the summons and complaint on July 18, 2003. Plaintiffs allege that during a televised interview, the president and founder of the Alliance of Guardian Angels, Curtis Sliwa (hereinafter "defendant"), stated that plaintiffs were involved in the illegal sale and transportation of firearms and that defendant stated "I know that they are trafficking guns up to Canada." Thereafter, defendants moved to dismiss the complaint pursuant to CPLR §3211(a)(3) and (8). The motion was denied, however, plaintiffs were granted leave to file and serve a properly amended summons and complaint within thirty days thereof. On July 27, 2004, plaintiffs filed their third amended summons and complaint. On or about August 11, 2004, issue was joined. Defendants moved for summary judgment in March of 2005 and said motion was denied as premature since discovery was incomplete. The Note of Issue was filed on November 11, 2006. Plaintiffs now seek leave of the court to amend the summons and complaint to include the relief of punitive damages.^[FN1] [*2]

"Leave to amend or supplement pleadings should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from the delay in seeking the amendment." Maloney Carpentry, Inc. v. Budnik, 37 AD3d 558 (2d Dept 2007). See CPLR §3025(b); Ricca v. Valenti, 24 AD3d 647, 648 (2d Dept 2005); Fisher v. Braun, 227 AD2d 586 (2d Dept 1996). "The decision to allow or disallow the amendment is committed to the court's discretion." Edenwald Contracting Co. Inc. v City of New York, 60 NY2d 957 (1983). See Mayers v. D'Agostino, 58 NY2d 696, 698 (1982); Pergament v. Roach, 41 AD3d 569, 572 (2d Dept 2007).

Punitive damages are awarded in tort actions "[w]here the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime." Prozeralik v. Capital Cities Communications, Inc. 82 NY2d 466, 479 (1993) quoting Prosser and Keeton, Torts § 2, at 9 [5th ed. 1984] . "Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice,' or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton." Id.^[FN2] "This kind of common-law malice focuses on the defendant's mental state in relation to the plaintiff and the motive in publishing the falsity—the pointed factors that punitive damages are intended to remedy." Prozeralik v. Capital Cities Communitications, Inc. 82 NY2d at 480. See Liberman v. Gelstein, 80 NY2d 429, 441 (1992); Mahoney v. Adirondack Pub. Co., 71 NY2d 31 (1987); Foster v. Churchill, 87 NY2d 744 (1996).

Plaintiffs argue that at the time defendant allegedly defamed Siraj Wahaj (hereinafter "Wahaj"), defendant knew Wahaj to be a religious Muslim leader and a respected person in his community. Plaintiffs submit the examination before trial of defendant wherein he states that he was impressed with Wahaj and liked what he was doing in the Bedford-Stuyvesant community. Consequently, defendant could not understand why Wahaj would testify on behalf of Sheik Abdur-Rahman in the 1993 World Trade Center bombing trial. Plaintiffs maintain that post September 11, 2001, any false accusation that a Muslim leader is "running guns to Canada" or engaging in illegal activities dealing with weapons is reckless conduct. Moreover, plaintiffs argue that defendant's comments were malicious because they were allegedly motivated by defendant's dislike of Wahaj's association with Sheik Abdur-Rahman. Plaintiffs allege further [*3]that defendant is not prejudiced by this amendment because the facts and theory upon which this case is based remains the same and support a finding of punitive damages, although not specifically prayed for previously. Finally, plaintiffs' attorney provides an explanation for his delay in bringing the instant motion by stating that he was under the belief that punitive damages had been explicitly requested in the summons and complaint, but that due to a clerical error, such relief had not been requested.

Defendants argue that plaintiffs' delay in moving to amend the pleadings is both prejudicial and untimely. Defendant's deposition, which allegedly establishes defendant's malice, was conducted approximately 19 months before the instant motion was made. Therefore, defendants allege, this motion could have been made before the instant action was placed on the trial calendar. Moreover, defendants maintain that they built their defense around the pleadings as they stand, without exploring the issue of malice during the discovery phase of the case. Therefore, they would be prejudiced by the proposed amendment to add punitive damages.

The Court finds that the circumstances surrounding defendant's statements and his mental state in relation to Wahaj support a "legally cognizable" cause of action for punitive damages. See Sylvester v. Stephens, 148 AD2d 523 (2d Dept 1989). Defendants claim that "maliciousness was never a part of this case...." However, as previously noted, on a motion for summary judgment, the court found that defendants did not meet their burden of establishing that Wahaj is a public figure or that the subject of the statement is one of public concern. Nevertheless, a jury may find that "actual malice" is indeed an element of the underlying defamation action. Although defendants contend that common law malice and its elements were never at issue in this case, they cannot argue that they were unaware that malice was part of the defamation action and that they never explored the issue during the pretrial discovery phase of this case. However, in light of defendants' contention, the Court will provide them an opportunity to more fully explore the issues.

In view of the foregoing, plaintiffs' motion to amend their pleadings is granted. The proposed amended complaint attached to plaintiffs' reply papers is deemed served. Defendants shall have thirty days from service of a copy of this Order with notice of entry to serve and file an amended answer. Moreover, plaintiffs' Note of Issue is hereby stricken and the parties are to appear in the Central Compliance Part on December 13, 2007.

The foregoing shall constitute the Decision and Order of the Court.

Donald Scott Kurtz

Justice, Supreme Court