Summary
holding that plaintiff was not entitled to append demand for attorneys' fees to trespass claim
Summary of this case from Rozell v. Ross-HolstOpinion
752N
April 8, 2003.
Order, Supreme Court, Bronx County (Dianne Renwick, J.), entered February 26, 2002, which denied plaintiffs' motion for leave to amend their pleading to add claims for punitive damages and attorneys' fees, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered May 31, 2002, deeming plaintiffs' subsequent motions to be ones for reargument and denying them as such, unanimously dismissed, without costs, as no appeal lies from the denial of reargument.
Michael Drezin, for plaintiffs-appellants.
John Jacob Rieck, Jr., for defendant-respondent.
Before: Mazzarelli, J.P., Sullivan, Ellerin, Lerner, Marlow, JJ.
The motion court properly denied plaintiffs' motion for leave to amend their complaint seeking damages for trespass to add a claim for punitive damages since the proposed amendment was palpably insufficient as a matter of law (see Davis Davis, P.C. v. Morson, 286 A.D.2d 584). Plaintiffs made no showing that the trespass at issue was maliciously motivated (see Schiffman v. Empire Blue Cross Blue Shield, 256 A.D.2d 131) or that it constituted a wanton, willful or reckless disregard of plaintiffs' right of possession (see Litwin v. Town of Huntington, 248 A.D.2d 361). Leave to amend the complaint to add a claim for attorneys' fees was also properly denied since plaintiffs failed to set forth a statutory, contractual or other legal basis for an award of such fees (see E.M.R. Mgt. Corp. v. Halstead Harrison Assocs., 299 A.D.2d 393, 749 N.Y.S.2d 569).
We have considered plaintiffs' remaining arguments and find them unavailing. Any further application for the relief sought herein will result in the imposition of sanctions, sua sponte.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.