Summary
reversing trial court's grant of leave to amend because proposed causes of action for negligent hiring, supervision, and retention would be "palpably insufficient as a matter of law" where defendant's employee rear-ended plaintiff while driving a defendant-owned vehicle during work hours
Summary of this case from Harisch v. GoldbergOpinion
CA 03-02070.
Decided March 19, 2004.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered April 30, 2003. The order granted plaintiff's motion for leave to amend the summons and complaint.
GOLDBERG SEGALLA LLP, BUFFALO (JEFFREY J. SIGNOR OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
JOHN FEROLETO — ATTORNEYS AT LAW, BUFFALO (JOHN P. FEROLETO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, HURLBUTT, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying those parts of the motion seeking leave to amend the complaint to assert a cause of action for negligent hiring, supervision and retention and a claim for punitive damages against defendant Integrity Distribution, Inc. and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when his vehicle was rear-ended by a vehicle owned by defendant Integrity Distribution, Inc. (Integrity) and driven by Integrity's employee, defendant Steven M. Strack. It is undisputed that Integrity did not conduct an investigation into the driving record of Strack before hiring him and did not monitor his driving record while he was employed by Integrity. At the time of the accident at issue herein, Strack had a pending charge for driving while intoxicated and was driving illegally during work hours on a hardship license that permitted him to drive only to and from work. Strack also had several other driving infractions on his record.
Supreme Court erred in granting those parts of plaintiff's motion seeking leave to amend the complaint to assert a cause of action for negligent hiring, supervision and retention as well as a claim for punitive damages against Integrity, and thus we modify the order accordingly ( see generally Island Cycle Sales v. Khlopin, 126 A.D.2d 516, 517-518). A motion seeking leave to amend the complaint should not be granted where the proposed amendment is "plainly lacking in merit" ( New York State Health Facilities Assn. v. Axelrod, 229 A.D.2d 864, 866) or "is `palpably insufficient' as a matter of law" ( Island Cycle Sales, 126 A.D.2d at 518). Here, the cause of action for negligent hiring, supervision and retention is plainly lacking in merit. Such a cause of action does not lie where, as here, the employee is acting within the scope of his or her employment, thereby rendering the employer liable for damages caused by the employee's negligence under the theory of respondeat superior ( see Weinberg v. Guttman Breast Diagnostic Inst., 254 A.D.2d 213; cf. Matter of Kenneth R. v. Roman Catholic Dioceses of Brooklyn, 229 A.D.2d 159, 161, cert denied 522 U.S. 967, lv dismissed 91 N.Y.2d 848). "While an exception exists to this general principle where the injured plaintiff is seeking punitive damages from the employer based on alleged gross negligence in the hiring or retention of the employee" ( Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 324), the proposed cause of action and claim for punitive damages nevertheless are plainly lacking in merit. Punitive damages may be awarded when the defendant's conduct has a "high degree of moral culpability" ( Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 203). Such conduct "need not be intentional and it is sufficient if it is so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" ( Rinaldo v. Mashayekhi, 185 A.D.2d 435, 436). We conclude as a matter of law that the alleged failure of Integrity to conduct an investigation into the driving record of Strack before hiring him or to monitor his driving record while he was employed by Integrity does not constitute the requisite conduct for the imposition of punitive damages ( cf. Dumesnil v. Proctor Schwartz, 199 A.D.2d 869, 870-871).
We further conclude, however, that the court properly granted that part of plaintiff's motion seeking leave to amend the ad damnum clause to increase the amount of damages sought. Such an amendment is properly allowed where, as here, there is no showing that defendants have "been hindered in the preparation of [their] case or [have] been prevented from taking some measure in support of [their] position" ( Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, rearg denied 55 N.Y.2d 801; see Stornelli v. Aakron Rule Corp., 89 A.D.2d 1060).