Frenya v. Champlain Valley Physicians' Hospital Medical Center

Majority

p. 1000

Tara Frenya, an Infant, by Larry Frenya, Her Parent, Appellant, v Champlain Valley Physicians’ Hospital Medical Center, Respondent.

Appeal from an order of the Supreme Court (Viscardi, J.), entered January 20, 1987 in Clinton County, which, inter alia, granted defendant’s cross motion to strike plaintiff’s claim for punitive damages from the complaint.

In this medical malpractice action, plaintiff contends that Supreme Court erred in striking her claim for punitive damages. We agree with Supreme Court that punitive damages are not appropriate in this case. Punitive damages may not be claimed in the absence of a wrongful motive on the defendant’s part, willful or intentional misdoing, or a reckless indifference equivalent to willful or intentional misdoing (36 NY Jur 2d, Damages, § 175, at 293). In the case of a tort

p. 1001

action, the defendant’s conduct must be so flagrant as to transcend mere carelessness (36 NY Jur 2d, Damages, § 177, at 299-300). Here, although the allegations against defendant contained in the complaint are indeed serious, none of the allegations rises to a level as to permit a claim for punitive damages. Accordingly, plaintiff’s claim for punitive damages was properly stricken from her complaint.

Order affirmed, with costs. Mahoney, P. J., Yesawich, Jr., Levine and Harvey, JJ., concur; Main, J., not taking part.