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FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
SILVIA MOLINA TORRES, SUPPORTING
AFFIRMATION
Plaintiff,
Index Number: 701162/21
-against-
DANIEL ROBERT CANHAM, SHUTAI CHOI LUIS F.
ORDONEZ PAGUAY and KLEVER R. PALADINES,
Defendants,
Jenny Lazar, Esq., an attorney admitted to practice law before the Courts of the State of
New York, affirms the following to be true under penalties of perjury:
1. I am an attorney with the law firm of James F. Butler & Associates, attorneys of
record for the Defendants, Klever R. Paladines and Luis F. Ordonez Paguay, and as such, am fully
familiar with the facts and circumstances surrounding this action, by virtue of a review of the file
maintained in this matter by this office.
2. This affirmation is submitted in support of Defendants’ Motion for an Order pur-
suant to Rules 3024(b) and 3043(b) of the Civil Practice Law and Rules, striking the claim for
gross negligence contained in paragraph 3 of plaintiff’s Verified Bill of Particulars as against the
Defendants, on the grounds that no claim for gross negligence is contained in the plaintiff’s Com-
plaint and the Complaint fails to state a cause of action for gross negligence against said Defend-
ants; and for such other and further relief as to this Court may deem just and proper.
3. The plaintiff seeks to recover damages for alleged personal injuries as a result of a
motor vehicle accident that occurred on January 28, 2018. A copy of the Police Accident Report
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is annexed as Exhibit “A”. There is no indication in that report that any of the operators were
ticketed or arrested as a result of the accident.
4. The plaintiff, Silvia Molina, commenced an action against the Defendants by the
filing of a Summons and Complaint, dated January 18, 2021 and filed January 18, 2021. A copy
of the Summons and Complaint is annexed as Exhibit “B”. In the Complaint, the plaintiff alleged
that the Defendants were negligent with respect to the motor vehicle accident. There was no alle-
gation in the Complaint that the Defendants was/were “grossly negligent.” See Exhibit “B”.
5. The moving defendants served an Answer with affirmative defenses dated June 25,
2021, a copy of which is annexed as Exhibit “C”.
6. Plaintiff served a Verified Bill of Particulars dated December 13, 2021. A copy of
plaintiff’s Verified Bill of Particulars is annexed as Exhibit “D.” At paragraph 3 of the Bill of
Particulars, plaintiff sets forth that the defendants were grossly negligent, even though no such
claim was set forth in the plaintiff Complaint.
7. Counsel for the defendant sent three (3) emails to plaintiff’s counsel dated Decem-
berr 15, 2021, January 13, 2022, and March 29, 2022, requesting the voluntary withdrawal of the
claim of gross negligence advanced in paragraph “3” of the Verified Bill of Particulars. Copies of
these good faith emails are annexed hereto as Exhibit “E”.
8. Despite such attempts at voluntary withdrawal, to date, plaintiff’s counsel has not
executed the Stipulation withdrawing the gross negligence allegation contained in paragraph 3 of
plaintiff’s Verified Bill of Particulars
9. Defendants respectfully submit that the purported claim for gross negligence/puni-
tive damages be dismissed. The Court of Appeals of this State has held that:
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Punitive damages are intended to act as a deterrent to the offender
“and to serve as a warning to others. They are intended as punish-
ment for gross misbehavior for the good of the public and have been
referred to as ‘a sort of hybrid between a display of ethical indigna-
tion and the imposition of a criminal fine’ [citations omitted]. Puni-
tive damages are allowed on the ground of public policy and not
because the plaintiff has suffered any monetary damages for which
he is entitled to reimbursement; the award goes to him simply be-
cause it is assessed in his particular suit. The damages may be con-
sidered expressive of the community attitude towards one who
willfully and wantonly causes hurt or injury to another” [citations
omitted]. The nature of the conduct which justifies an award of pu-
nitive damages has been variously described, but, essentially, it is
conduct having a high degree of moral culpability which manifests
a “conscious disregard of the rights of others or conduct so reckless
as to amount to such disregard.” Such conduct need not be inten-
tionally harmful but may consist of actions which constitute willful
or wanton negligence or recklessness.
See Home Insurance Co. v. American Home Products Corp., 75 N.Y.2d 196, 551 N.Y.S.2d
930 (1990). See also, Giblin v. Murphy, 73 N.Y.2d 769, 536 N.Y.S.2d 54 (1988) [plaintiff must
demonstrate that the defendant committed “willful and wanton negligence” or was “grossly negli-
gent and reckless”]. In Pietras v. Gol Pak Corp., 131 A.D.2d 239, 520 N.Y.S.2d 683 (4th Dept.
1987), it was held that “punitive or exemplary damages, where recoverable and justified, may be
awarded in all actions based upon tortious acts which involve ingredients of malice, oppression,
insult, wanton or reckless disregard of plaintiff's rights, or other circumstances of aggravation.”
10. In the subject case, there were no allegations in the plaintiff’s Complaint that this
automobile accident involved any malice, oppression or a reckless disregard of the rights of others.
Instead, the plaintiff simply set(s) forth that the vehicles were involved in a motor vehicle accident.
See Exhibit “B”. As noted above, no claim for gross negligence/punitive damages was set forth in
the Complaint. See Exhibit “B”.
11. In Kovacs v. Briarcliffe School, Inc., 208 A.D.2d 686, 617 N.Y.S.2d 804 (2d Dept.
1994) it was held that the plaintiff established a claim of gross negligence where the “first and
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second causes of action include sufficient allegations of intentional and malicious conduct to sup-
port an award of punitive damages, if proven.” And in Wolosin v. Campo, 256 A.D.2d 332, 681
N.Y.S.2d 358 (2d Dept. 1998) it was held that “award of punitive damages was proper in light of
evidence of the intentional and malicious conduct . . . .” No such allegations are contained in the
subject Complaint served by the plaintiff in this case.
12. Further, it has been held that “intoxication alone does not open the door for punitive
damages and that each situation must be considered on a case-by-case basis.” See Trudeau v.
Cooke, 2 A.D.3d 1133, 769 N.Y.S.2d 322 (3d Dept. 2003). And in Taylor v. Dyer, 190 A.D.2d
902, 593 N.Y.s.2d 122 (3d Dept. 1993) it was held that “an award of punitive damages requires
evidence of willful or wanton reckless conduct. . . which has been described as ‘morally culpable
[or] actuated by evil and reprehensible motives’. . . [and] here the record is devoid of evidence
sufficient to justify an award of punitive damages.” Lastly, in Maitrejean v. Levon Properties
Corp., 87 A.D.2d 605, 448 N.Y.S.2d 46 (2d Dept. 1982), it was held that there was “no evidence
in the record that defendants were guilty of ‘quasicriminal conduct’ or of such utterly reckless
behavior as would justify an award for punitive damages [and] plaintiffs have not alleged facts
demonstrating a malicious intent on the part of defendants to injure plaintiffs.”
13. Claims for “gross negligence” should not appear in actions filed after the occur-
rence of “typical” motion vehicle accidents, especially where the Complaint does not contain al-
legations of intentional, malicious or other types of conduct that would qualify. The police accident
report did not contain any statements that the defendants acted intentionally, with malice or that
this was a “road rage” type accident (See Exhibit A). No claims of intentional conduct are made
in the Complaint (See Exhibit B). In cases similar to the case at bar, where the Complaint simply
claims that the defendant was “grossly negligent,” it is clear that the language was added pro forma
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and it should not be allowed to stand. It is not in my client’s interest to allow such language to
stand. In Home Insurance Company v. American Home Products Corp., 75 N.Y.2d 196, 551
N.Y.S.2d 930 (1990), it was held that:
There is no question that the general rule, as articulated in two of
our recent decisions, is that New York public policy precludes in-
surance indemnification for punitive damage awards, whether the
punitive damages are based on intentional actions or actions which,
while not intentional, amount to “gross negligence, recklessness, or
wantonness” (Public Service Mutual Insurance Co. v. Goldfarb, 53
N.Y.2d 392 [defendant insured was accused of sexual abuse-court
held insurer not obligated to indemnify him for punitive damages
claim]) or conscious disregard of the rights of others or for conduct
so reckless as to amount to such disregard (Hartford Acc. & Indem
Co. v. Village of Hempstead, 48 N.Y.2d 218[plaintiff alleged police
officers struck him with nightsticks in violation of 1983 Civil Rights
Act])
Id.
14. CPLR Rule 3024(b) sets forth that ‘a party may move to strike any scandalous or
prejudicial matter unnecessarily inserted in a pleading.” CPLR 3043(b) sets forth that (b) that “no
new cause of action may be alleged” in the Bill of Particulars. In this case, the plaintiffs never
alleged that the defendants committed any intentional or malicious acts, “quasicriminal conduct”
were intoxicated or had reprehensible motives in this case arising from a motor vehicle accident
on the Summons and Complaint. Plaintiff’s complaint does not contain the necessary factual aver-
ments to support a claim for gross negligence/punitive damages. Thus, a new cause of action can-
not be asserted for the first time in the Bill of Particulars. In Aronis v. TLC Vision Centers, Inc.,
49 A.D.3d 576, 578, 853 N.Y.S.2d 621, 623 (2d Dept. 2008), it was held that the lower Court
should have granted those branches of the defendants' respective motions which were to strike the
prejudicial and inflammatory language of punitive damages in the plaintiff's bills of particulars.
See also, Kinzer v. Bederman, 59 A.D.3d 496, 497, 873 N.Y.S.2d 692, 693–94 (2d Dept. 2009)
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[defendants' motion to strike scandalous and prejudicial language from the complaint should have
been granted as the subject language is irrelevant to the viability of a dental malpractice cause of
action and prejudicial to the defendants]. In Clare-Hollo v. Finger Lakes Ambulance EMS, Inc.,
99 A.D.3d 1199, 1200, 952 N.Y.S.2d 350, 352 (4th Dept. 2012), it was held that “several allega-
tions in the supplemental bill of particulars should be stricken pursuant to CPLR 3043(b) [and that
] statute has been interpreted to prohibit a party from using a supplemental bill of particulars to
add a theory of liability not previously alleged in the complaint or original bill of particulars.
15. In this case, there is no basis for the claim that the defendants were “grossly negli-
gent” in this matter. It was never set forth as a claim in the plaintiff’ Complaint. Therefore, the
claim must be stricken from the Bill of Particulars.
16. No prior application for the relief requested herein has been made.
WHEREFORE, it is respectfully requested that this Court grant the moving defendants’
Motion for an Order pursuant to Rules 3024-b 3024(b) and 3043(b) of the Civil Practice Law and
Rules, striking the claim for gross negligence contained in paragraph 3 of plaintiff’s Verified Bill
of Particulars as against the defendants, on the grounds that no claim for gross negligence is con-
tained in the plaintiff’ Complaint and the Complaint fails to state a cause of action for gross neg-
ligence against said defendants; and for such other and further relief as to this Court may deem
just and proper.
Dated: Jericho, NY
May 17, 2022
_______________________________________
Jenny Lazar, Esq.
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Preview
FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS SILVIA MOLINA TORRES, SUPPORTING AFFIRMATION Plaintiff, Index Number: 701162/21 -against- DANIEL ROBERT CANHAM, SHUTAI CHOI LUIS F. ORDONEZ PAGUAY and KLEVER R. PALADINES, Defendants, Jenny Lazar, Esq., an attorney admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am an attorney with the law firm of James F. Butler & Associates, attorneys of record for the Defendants, Klever R. Paladines and Luis F. Ordonez Paguay, and as such, am fully familiar with the facts and circumstances surrounding this action, by virtue of a review of the file maintained in this matter by this office. 2. This affirmation is submitted in support of Defendants’ Motion for an Order pur- suant to Rules 3024(b) and 3043(b) of the Civil Practice Law and Rules, striking the claim for gross negligence contained in paragraph 3 of plaintiff’s Verified Bill of Particulars as against the Defendants, on the grounds that no claim for gross negligence is contained in the plaintiff’s Com- plaint and the Complaint fails to state a cause of action for gross negligence against said Defend- ants; and for such other and further relief as to this Court may deem just and proper. 3. The plaintiff seeks to recover damages for alleged personal injuries as a result of a motor vehicle accident that occurred on January 28, 2018. A copy of the Police Accident Report 3 1 of 6 FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022 is annexed as Exhibit “A”. There is no indication in that report that any of the operators were ticketed or arrested as a result of the accident. 4. The plaintiff, Silvia Molina, commenced an action against the Defendants by the filing of a Summons and Complaint, dated January 18, 2021 and filed January 18, 2021. A copy of the Summons and Complaint is annexed as Exhibit “B”. In the Complaint, the plaintiff alleged that the Defendants were negligent with respect to the motor vehicle accident. There was no alle- gation in the Complaint that the Defendants was/were “grossly negligent.” See Exhibit “B”. 5. The moving defendants served an Answer with affirmative defenses dated June 25, 2021, a copy of which is annexed as Exhibit “C”. 6. Plaintiff served a Verified Bill of Particulars dated December 13, 2021. A copy of plaintiff’s Verified Bill of Particulars is annexed as Exhibit “D.” At paragraph 3 of the Bill of Particulars, plaintiff sets forth that the defendants were grossly negligent, even though no such claim was set forth in the plaintiff Complaint. 7. Counsel for the defendant sent three (3) emails to plaintiff’s counsel dated Decem- berr 15, 2021, January 13, 2022, and March 29, 2022, requesting the voluntary withdrawal of the claim of gross negligence advanced in paragraph “3” of the Verified Bill of Particulars. Copies of these good faith emails are annexed hereto as Exhibit “E”. 8. Despite such attempts at voluntary withdrawal, to date, plaintiff’s counsel has not executed the Stipulation withdrawing the gross negligence allegation contained in paragraph 3 of plaintiff’s Verified Bill of Particulars 9. Defendants respectfully submit that the purported claim for gross negligence/puni- tive damages be dismissed. The Court of Appeals of this State has held that: 4 2 of 6 FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022 Punitive damages are intended to act as a deterrent to the offender “and to serve as a warning to others. They are intended as punish- ment for gross misbehavior for the good of the public and have been referred to as ‘a sort of hybrid between a display of ethical indigna- tion and the imposition of a criminal fine’ [citations omitted]. Puni- tive damages are allowed on the ground of public policy and not because the plaintiff has suffered any monetary damages for which he is entitled to reimbursement; the award goes to him simply be- cause it is assessed in his particular suit. The damages may be con- sidered expressive of the community attitude towards one who willfully and wantonly causes hurt or injury to another” [citations omitted]. The nature of the conduct which justifies an award of pu- nitive damages has been variously described, but, essentially, it is conduct having a high degree of moral culpability which manifests a “conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” Such conduct need not be inten- tionally harmful but may consist of actions which constitute willful or wanton negligence or recklessness. See Home Insurance Co. v. American Home Products Corp., 75 N.Y.2d 196, 551 N.Y.S.2d 930 (1990). See also, Giblin v. Murphy, 73 N.Y.2d 769, 536 N.Y.S.2d 54 (1988) [plaintiff must demonstrate that the defendant committed “willful and wanton negligence” or was “grossly negli- gent and reckless”]. In Pietras v. Gol Pak Corp., 131 A.D.2d 239, 520 N.Y.S.2d 683 (4th Dept. 1987), it was held that “punitive or exemplary damages, where recoverable and justified, may be awarded in all actions based upon tortious acts which involve ingredients of malice, oppression, insult, wanton or reckless disregard of plaintiff's rights, or other circumstances of aggravation.” 10. In the subject case, there were no allegations in the plaintiff’s Complaint that this automobile accident involved any malice, oppression or a reckless disregard of the rights of others. Instead, the plaintiff simply set(s) forth that the vehicles were involved in a motor vehicle accident. See Exhibit “B”. As noted above, no claim for gross negligence/punitive damages was set forth in the Complaint. See Exhibit “B”. 11. In Kovacs v. Briarcliffe School, Inc., 208 A.D.2d 686, 617 N.Y.S.2d 804 (2d Dept. 1994) it was held that the plaintiff established a claim of gross negligence where the “first and 5 3 of 6 FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022 second causes of action include sufficient allegations of intentional and malicious conduct to sup- port an award of punitive damages, if proven.” And in Wolosin v. Campo, 256 A.D.2d 332, 681 N.Y.S.2d 358 (2d Dept. 1998) it was held that “award of punitive damages was proper in light of evidence of the intentional and malicious conduct . . . .” No such allegations are contained in the subject Complaint served by the plaintiff in this case. 12. Further, it has been held that “intoxication alone does not open the door for punitive damages and that each situation must be considered on a case-by-case basis.” See Trudeau v. Cooke, 2 A.D.3d 1133, 769 N.Y.S.2d 322 (3d Dept. 2003). And in Taylor v. Dyer, 190 A.D.2d 902, 593 N.Y.s.2d 122 (3d Dept. 1993) it was held that “an award of punitive damages requires evidence of willful or wanton reckless conduct. . . which has been described as ‘morally culpable [or] actuated by evil and reprehensible motives’. . . [and] here the record is devoid of evidence sufficient to justify an award of punitive damages.” Lastly, in Maitrejean v. Levon Properties Corp., 87 A.D.2d 605, 448 N.Y.S.2d 46 (2d Dept. 1982), it was held that there was “no evidence in the record that defendants were guilty of ‘quasicriminal conduct’ or of such utterly reckless behavior as would justify an award for punitive damages [and] plaintiffs have not alleged facts demonstrating a malicious intent on the part of defendants to injure plaintiffs.” 13. Claims for “gross negligence” should not appear in actions filed after the occur- rence of “typical” motion vehicle accidents, especially where the Complaint does not contain al- legations of intentional, malicious or other types of conduct that would qualify. The police accident report did not contain any statements that the defendants acted intentionally, with malice or that this was a “road rage” type accident (See Exhibit A). No claims of intentional conduct are made in the Complaint (See Exhibit B). In cases similar to the case at bar, where the Complaint simply claims that the defendant was “grossly negligent,” it is clear that the language was added pro forma 6 4 of 6 FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022 and it should not be allowed to stand. It is not in my client’s interest to allow such language to stand. In Home Insurance Company v. American Home Products Corp., 75 N.Y.2d 196, 551 N.Y.S.2d 930 (1990), it was held that: There is no question that the general rule, as articulated in two of our recent decisions, is that New York public policy precludes in- surance indemnification for punitive damage awards, whether the punitive damages are based on intentional actions or actions which, while not intentional, amount to “gross negligence, recklessness, or wantonness” (Public Service Mutual Insurance Co. v. Goldfarb, 53 N.Y.2d 392 [defendant insured was accused of sexual abuse-court held insurer not obligated to indemnify him for punitive damages claim]) or conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard (Hartford Acc. & Indem Co. v. Village of Hempstead, 48 N.Y.2d 218[plaintiff alleged police officers struck him with nightsticks in violation of 1983 Civil Rights Act]) Id. 14. CPLR Rule 3024(b) sets forth that ‘a party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” CPLR 3043(b) sets forth that (b) that “no new cause of action may be alleged” in the Bill of Particulars. In this case, the plaintiffs never alleged that the defendants committed any intentional or malicious acts, “quasicriminal conduct” were intoxicated or had reprehensible motives in this case arising from a motor vehicle accident on the Summons and Complaint. Plaintiff’s complaint does not contain the necessary factual aver- ments to support a claim for gross negligence/punitive damages. Thus, a new cause of action can- not be asserted for the first time in the Bill of Particulars. In Aronis v. TLC Vision Centers, Inc., 49 A.D.3d 576, 578, 853 N.Y.S.2d 621, 623 (2d Dept. 2008), it was held that the lower Court should have granted those branches of the defendants' respective motions which were to strike the prejudicial and inflammatory language of punitive damages in the plaintiff's bills of particulars. See also, Kinzer v. Bederman, 59 A.D.3d 496, 497, 873 N.Y.S.2d 692, 693–94 (2d Dept. 2009) 7 5 of 6 FILED: QUEENS COUNTY CLERK 05/19/2022 04:17 PM INDEX NO. 701162/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/19/2022 [defendants' motion to strike scandalous and prejudicial language from the complaint should have been granted as the subject language is irrelevant to the viability of a dental malpractice cause of action and prejudicial to the defendants]. In Clare-Hollo v. Finger Lakes Ambulance EMS, Inc., 99 A.D.3d 1199, 1200, 952 N.Y.S.2d 350, 352 (4th Dept. 2012), it was held that “several allega- tions in the supplemental bill of particulars should be stricken pursuant to CPLR 3043(b) [and that ] statute has been interpreted to prohibit a party from using a supplemental bill of particulars to add a theory of liability not previously alleged in the complaint or original bill of particulars. 15. In this case, there is no basis for the claim that the defendants were “grossly negli- gent” in this matter. It was never set forth as a claim in the plaintiff’ Complaint. Therefore, the claim must be stricken from the Bill of Particulars. 16. No prior application for the relief requested herein has been made. WHEREFORE, it is respectfully requested that this Court grant the moving defendants’ Motion for an Order pursuant to Rules 3024-b 3024(b) and 3043(b) of the Civil Practice Law and Rules, striking the claim for gross negligence contained in paragraph 3 of plaintiff’s Verified Bill of Particulars as against the defendants, on the grounds that no claim for gross negligence is con- tained in the plaintiff’ Complaint and the Complaint fails to state a cause of action for gross neg- ligence against said defendants; and for such other and further relief as to this Court may deem just and proper. Dated: Jericho, NY May 17, 2022 _______________________________________ Jenny Lazar, Esq. 8 6 of 6