The plaintiff commenced this action seeking damages for personal injuries sustained in a rear-end collision which occurred in New Rochelle at approximately 2:00 AM on November 10, 2012.

On the eve of trial, plaintiff now seeks to introduce evidence that the defendant driver Ferrari was inebriated, was convicted of aggravated driving while intoxicated in connection with this and prior incidents, and based upon that evidence, argues that she should be awarded punitive damages. The defendants conceded liability before trial, and now move by Order to Show Cause to preclude any mention at trial of the defendant's present or prior DWI convictions. They argue that the plaintiff did not indicate that she was seeking punitive damages until the eve of trial, and that any such claim would be prejudicial at this late stage. In opposition, plaintiff asserts that she intended to seek punitive damages, and that consequently the defendant's convictions are relevant to the issue of damages. Plaintiff argues that the allegations in the bill of particulars were sufficient to place defendants on notice that punitive damages might be sought.

The complaint, uploaded to NYSCEF on May 14, 2014, does not plead that defendant Ferrari was intoxicated, nor allege that his conduct was "wanton and reckless." Punitive damages are not sought in the complaint. The bill of particulars does, however, allege that the defendant was speeding, that his conduct was "reckless and negligent," and that he was driving under the influence of alcohol. Defendant Ferrari subsequently pleaded guilty to a criminal charge of VTL 1192 (2)^[FN1] arising out of the subject accident.

Punitive damages must be supported by allegations of wanton conduct. (Bennett v. State Farm Fire & Cas. Co., 137 AD3d 731[2d Dept. 2016] [complaint failed to plead conduct that would potentially justify an award of punitive damages].) Here, however, no facts warranting punitive damages were alleged in the complaint, and no request or demand was made for punitive damages. (See Belt v. Girgis, 82 AD3d 1028 [2d Dept. 2011] [plaintiff was not entitled to punitive damages, as she neither demanded punitive damages in her pleadings, nor made a timely application to conform the pleadings to the proof]; Dental Health Assocs. v. Zangeneh, 34 AD3d 622 [2d Dept. 2006] [plaintiffs were not entitled to punitive damages, on the ground that punitive damages were not demanded in the pleadings].)

Rather, the only support for punitive damages comes from the bill of particulars. While it is true that the word "reckless" is used once, punitive damages are not requested, and no fair reading of the bill of particulars would put a reasonable defendant on notice that punitive damages were being sought. This is especially true because in a motor vehicle accident case the fact that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive [*2]damages. (Rodgers v. Duffy, 95 AD3d 864 [2d Dept. 2012].) The allegations of "recklessness," speeding, and drunkenness do not allege facts establishing that defendant Ferrari acted with evil or reprehensible motives, or so recklessly or wantonly as to warrant an award of punitive damages.

Since the defendant would be surprised by the making of a claim for punitive damages at this point, the claim of punitive damages is not allowed.

Further, due to prejudice, an amendment of the pleadings is not permissible. "Where there is an unreasonable delay in seeking leave to amend, without excuse, and the motion for leave to amend is made close to or on the eve of trial, it is an improvident exercise of discretion to grant the relief. (See Navarette v Alexiades, 50 A.D3d 869 [2008])." (Dimoulas v. Roca, 120 AD3d 1293 [2d Dept. 2014].) It is clear that the defendants have not prepared to contest a punitive damages claim, nor was the defendant given the opportunity to obtain separate counsel, as it would appear that punitive damages would be outside the scope of the insurance herein. In short, defendant would be prejudiced by the inability to prepare a defense to a claim for punitive damages.

Lastly, even at this late juncture, the plaintiff's offer of proof as to speeding was entirely based on inferences to be drawn from photographs of the damages to the vehicles involved, without any expert evidence to support a claim of speeding. To submit punitive damages to a jury, there must be wanton or reckless conduct, which must be determined "on a case-by-case basis taking into account the nature of the actor's conduct and the level of his intoxication." (Sweeney v. McCormick, 159 AD2d 832, 834 [3d Dept. 1990].) Here, other than obvious and unrefuted evidence of intoxication and the happening of the accident, there is no evidence of reckless or wanton conduct in support of punitive damages.

Because punitive damages are not allowed, and because the defendants have conceded liability, the motion to preclude is granted.

Based upon the foregoing, it is hereby,

ORDERED that the motion to preclude is granted.

This constitutes the decision and order of the Court.