Supreme Court, Nassau County, April 19, 2018

Law Offices of Jennifer S. Adams, New Hyde Park, for defendants.

Asta and Associates, PC, New York City, for plaintiff.

Defendants move pursuant to CPLR 3211 (a) (7) to dismiss plaintiff's claim for punitive damages.

Before this court is a personal injury action arising out of a motor vehicle accident that occurred on December 3, 2015, on the eastbound Southern State Parkway at or near exit 28. The first cause of action of the complaint alleges, in addition to negligent operation of the vehicle, that the defendant was "otherwise driving in an extremely dangerous and reckless manner." The second cause of action alleges that at the time of this accident, defendant David Miller was operating his motor vehicle while intoxicated and, as a result, this defendant acted with willful, wanton and malicious disregard for the safety of other motorists on the roadway. As part of this cause of action plaintiff "demand[s] judgment for punitive damages as against the defendant, together with attorney's fees, costs and disbursements of this action."

Defendants' counsel argues that punitive damages are recoverable in a negligence action only where the conduct in question evidences a high degree of moral culpability or the conduct is so flagrant as to transcend mere carelessness and constitutes willful or wanton negligence. Counsel argues that plaintiff has made no allegations beyond those of ordinary negligence so there is no basis for an award of punitive damages. Further, counsel argues that operating a vehicle under the influence of alcohol by itself does not justify the imposition of punitive damages. The evidence would have to indicate that the defendant acted with evil or reprehensible motives or behaved recklessly or wantonly.

In opposition to this motion, plaintiff submits a police accident report as well as excerpted deposition testimony of the plaintiff Brandon Trigo and the defendant David Miller.

Plaintiff testified that on December 3, 2015, he was operating a Scion tC in the right lane of the Southern State Parkway at or near the Wantagh Avenue exit. At the moment the accident occurred he was traveling approximately 55 miles per hour. At the time of the accident he was struck by a Nissan pickup truck which he did not see prior to the accident. The Nissan truck heavily struck his right door causing his vehicle to enter the middle lane, spin and then crash into the middle guardrail.

{**60 Misc 3d at 458}He had a conversation with the Nissan truck driver after the accident. The driver was tall and disheveled. He told the police officers who responded to the scene that he thought that the driver of the Nissan truck was either intoxicated or under the influence. The defendant's speech was slurred and he could not stand up straight without leaning on the car.

David Miller testified that while at work prior to the accident he took OxyContin® and oxycodone. He did not know how many dosages of those two medications he took at that time. In the 24 hours before December 3, 2015, he also took oxycodone (four 30 milligram doses within a 24 hour period) and OxyContin® (two 80 milligram doses within a 24 hour period). He also took Lunesta® the evening before. The medications were prescribed to him by a physician.

He testified that he was in a merging lane of the eastbound Southern State Parkway. His intention was to go one lane over to his left. He did not observe any other vehicle prior to his collision. He entered the parkway at exit 28. The accident occurred at the end of the entrance ramp. He was unsure of his speed prior to the accident.

After the accident he said he took a breathalyzer test, which revealed no alcohol. He attempted to do field sobriety tests and he stated that he didn't believe that the results were good. He failed the tests and was placed under arrest. He believed that he was charged with DUI. He does not recall any other charges. He was sentenced to 60 days in jail and five years of probation. He stated that he pleaded guilty to DWI, moving from lane unsafely and driving on the shoulder slopes.

Defendant also testified that his driver's license was suspended for six months in 2014 due to DUI when he crashed into a parked car.

Plaintiff also attaches vehicle photos, the police report indicating violations and the criminal complaint and indictment issued against David Miller. An indictment is without evidentiary value and the precise disposition of the criminal proceeding is not before this court.

In the seminal case Sweeney v McCormick (159 AD2d 832 [3d Dept 1990]), the Court found that evidence of driving while intoxicated, alone, was insufficient to support a claim for punitive damages. The Court explained that

"[t]he nature of the conduct which will justify an award of punitive damages has been variously {**60 Misc 3d at 459} described but, essentially, it is conduct 'having a high degree of moral culpability' (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203) or activated by an evil and reprehensible motive (Walker v Sheldon, 10 NY2d 401, 404) which manifests a 'conscious disregard of the rights of others or conduct so reckless as to amount to such disregard' (Welch v Mr. Christmas, 57 NY2d 143, 150). Such conduct may consist of actions which constitute willful or wanton negligence or recklessness but need not be intentionally harmful (Home Ins. Co. v American Home Prods. Corp., supra).

"Evidence of willful or wanton negligence or recklessness, therefore, must be presented before a jury question of punitive damages is raised (see, supra). An act is 'wanton and reckless' when done under circumstances showing 'heedlessness and an utter disregard' for the 'rights and safety of others' (PJI 2:278). Based upon the [*3]foregoing, we hold that evidence of a defendant's intoxication will not support an award of punitive damages, absent a showing of wanton or reckless conduct (see, Detling v Chockley, 70 Ohio St 2d 134, 436 NE2d 208; Annotation, Intoxication of Automobile Driver as Basis for Awarding Punitive Damages, 65 ALR3d 656, 664-666; cf., Colligan v Fera, 76 Misc 2d 22). No such showing has been made here. We do not intend, however, to preclude an award of punitive damages under appropriate circumstances, to 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, 159 AD2d at 834; see also Schragel v Juszczyk, 43 AD3d 1375 [4th Dept 2007] [question of fact as to punitive damages where defendant failed field sobriety tests, had a blood alcohol content of 0.26%, and testified to consuming four 22 ounce beers and four or five shots containing tequila in the three to four hours before the accident; and could not recall stopping for a posted stop sign]; Bondi v Bambrick, 308 AD2d 330 [1st Dept 2003] [punitive damages appropriate where defendant was previously convicted of driving while intoxicated, was driving with a blood alcohol content of 0.42%, and crossed over a double yellow line, causing the accident]; Rinaldo v Mashayekhi, 185 AD2d 435 [3d Dept 1992] [punitive {**60 Misc 3d at 460} damages judgment upheld where defendant had a blood alcohol level almost twice the legal limit, was speeding, and failed a field sobriety test, and crashed directly into plaintiff's vehicle].)

Gershman v Ahmad (156 AD3d 868 [2d Dept 2017]) is highly instructive. In that case, in denying defendant's motion to dismiss plaintiff's demand for punitive damages, the Court found,

"The plaintiff erroneously denominated her request for punitive damages as a separate cause of action. 'New York does not recognize an independent cause of action for punitive damages' (Randi A.J. v Long Is. Surgi-Ctr., 46 AD3d 74, 80 [2007]; see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356 [2005]; Park v YMCA of Greater N.Y. Flushing, 17 AD3d 333 [2005]). Accordingly, the Supreme Court erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the separately pleaded sixth cause of action insofar as asserted against him.

"However, the plaintiff's request for punitive damages in the ad damnum clause of the complaint was proper. Whereas compensatory damages are intended to assure that the victim receives 'fair and just compensation commensurate with the injury sustained,' punitive damages are meant to 'punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future' (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]). With regard to the availability of punitive damages in personal injury cases involving drunk drivers, while this Court has held that '[e]vidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages' (Boykin v Mora, 274 AD2d 441, 442 [2000]; see Rodgers v Duffy, 95 AD3d 864, 866-867 [2012]), this Court has also held that 'driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in "wanton and reckless" conduct evincing heedlessness and an utter [*4]disregard for the safety of others' (Chiara v Dernago, 128 AD3d 999, 1003 [2015], quoting  Schragel v Juszczyk, 43 AD3d 1375, 1375{**60 Misc 3d at 461} [2007]). Indeed, punitive damages were properly imposed where the driver was excessively drunk (see Chiara v Dernago, 128 AD3d at 1003; Schragel v Juszczyk, 43 AD3d at 1376; Silvin v Karwoski, 242 AD2d 945 [1997]) or was a repeat offender (see Parkhill v Cleary, 305 AD2d 1088 [2003]). Accordingly, a request for punitive damages can be stated in a case arising from drinking and driving. Furthermore, at this stage it would be premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages (see Gipe v DBT Xpress, LLC, 150 AD3d 1208, 1209 [2017]; Felton v Tourtoulis, 87 AD3d 983, 984 [2011])" (Gershman, 156 AD3d 868, 868-869 [emphasis added]).

Here, absent expert testimony regarding the level of impairment likely to result from defendant's acknowledged consumption of oxycodone and in light of the defendant's admission that he failed the field sobriety tests and had been convicted of driving under the influence on a prior occasion, the court does not find at this early stage of the litigation that plaintiff's demand for punitive damages is without merit. (See Gershman, 156 AD3d at 868; see also Felton v Tourtoulis, 87 AD3d 983 [2d Dept 2011].)

Accordingly, it is hereby ordered, that the defendants' motion to dismiss the second cause of action for punitive damages is granted; and it is further ordered, that the plaintiff is granted leave to amend the complaint to include an ad damnum demand for punitive damages.

All applications not specifically addressed herein are denied.