17 East 96th Street Owners Corp. v. Madison 96th Street Associate, LLC

Majority

p. 452

17 East 96th Street Owners Corp., Appellant, v Madison 96th Street Associates, LLC, Respondent, et al., Defendant. (And a Third-Party Action.)

[39 NYS3d 794]—

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

p. 453

the cost of restoration (see Jenkins v Etlinger, 55 NY2d 35 , 39 [1982]).

Concur—Friedman, J.P., Renwick, Feinman, Gische and Kapnick, JJ.

Cases cited

Reuling v. Consolidated Edison Co. of New York, Inc. 138 AD3d 439 N.Y. App. Div. 2016-04-07 p. 452
Walker v. Sheldon 10 NY2d 401 N.Y. 1961-12-07 at 405 p. 452
Jenkins v. Etlinger 55 NY2d 35 N.Y. 1982-02-16 at 39 p. 453