Opinion
CA 00-02260.
February 11, 2004.
Appeal from an order of the Supreme Court, Genesee County (Edward A. Rath, Jr., J.), entered January 25, 2000. The order, insofar as appealed from, granted plaintiff's cross motion for leave to serve an amended complaint.
WOODS OVIATT GILMAN LLP, ROCHESTER (DANIEL PETER O'BRIEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WALSH, ROBERTS GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., PINE, WISNER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Although Sunbeam Corporation (defendant) is correct that a separate cause of action for punitive damages does not lie ( see Weir Metro Ambu-Service v. Turner, 57 N.Y.2d 911), here plaintiff sought leave to serve an amended complaint to interpose a cause of action for gross negligence, which included a claim for punitive damages as the relief sought with respect to that cause of action ( see Rahn v. Carkner, 241 A.D.2d 585, 586). Inasmuch as the proposed amendment does not plainly lack merit and defendant has not argued that it would be prejudiced thereby ( see generally Rinker v. Oberoi, 275 A.D.2d 1000), we conclude that Supreme Court did not abuse its discretion in granting plaintiff's cross motion seeking, in the alternative, leave to serve an amended complaint ( see Letterman v. Reddington, 278 A.D.2d 868).