Opinion
2014-08-27
Raymond DAWSON, etc., respondent, v. YMCA OF LONG ISLAND, INC., et al., appellants.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg of counsel), for appellants. Michael F. Perrotta, Huntington, N.Y., for respondent.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg of counsel), for appellants.Michael F. Perrotta, Huntington, N.Y., for respondent.
In an action, inter alia, to recover damages for wrongful death and personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Molia, J.), entered March 18, 2013, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants' motion which were for summary judgment dismissing so much of the complaint as sought to recover punitive damages and damages for loss of consortium insofar as asserted in connection with the plaintiffs' wrongful death cause of action, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
In February 2008, 17–year–old Marc William Dawson drowned in a swimming pool owned and operated by the defendant YMCA of Long Island, Inc. (hereinafter the YMCA). Marc's father, Raymond Dawson, commenced this action individually, and as the administrator of Marc's estate, to recover damages for wrongful death and personal injuries against the YMCA and four of its employees, alleging that they were negligent in causing Marc's injuries and death.
The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. The defendants appeal.
On their motion for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that Marc's actions in taking several deep breaths and then deliberately attempting to remain underwater in the pool as long as possible were the sole proximate cause of his death ( see Carriero v. Nazario, 116 A.D.3d 818, 819, 983 N.Y.S.2d 422; cf. Williams v. City of New York, 71 A.D.3d 1135, 1136–1137, 898 N.Y.S.2d 208). Given that Marc was a certified lifeguard, and based on “plain common sense,” he should have known that these actions posed a significant danger ( see Nolasco v. Splish Splash at Adventureland, Inc., 74 A.D.3d 1303, 1304, 903 N.Y.S.2d 250). Additionally, the defendants submitted evidence demonstrating that “shallow water blackout” was not an unusual consequence of such actions. In opposition to the defendants' prima facie showing, however, the plaintiff raised triable issues of fact as to whether the defendants acted negligently, specifically in their alleged failure to diligently attempt to have Marc surface earlier and in their alleged failure to physically remove him from the pool more quickly ( see Taveras v. City of New York, 108 A.D.3d 614, 616, 969 N.Y.S.2d 481; cf. Williams v. City of New York, 71 A.D.3d at 1136–1137, 898 N.Y.S.2d 208). Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the complaint was properly denied ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
However, the Supreme Court erred in denying that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as sought to recover punitive damages. Such an award “is warranted where a plaintiff establishes that the defendant's conduct evinced a high degree of moral turpitude and demonstrated behavior that equated to criminal indifference to civil obligations” (Stormes v. United Water N.Y., Inc., 84 A.D.3d 1351, 1351, 924 N.Y.S.2d 281; Huang v. Sy, 62 A.D.3d 660, 662, 878 N.Y.S.2d 398). The conduct “must be exceptional, as when the wrongdoer has actedmaliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness ... or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights” (Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 [internal quotation marks omitted] ).
Here, the defendants made a prima facie showing of entitlement to judgment as a matter of law that, to the extent that triable issues of fact remain as to whether they were negligent, their conduct did not rise to the level of moral culpability required to impose punitive damages ( see generally Shovak v. Long Is. Commercial Bank, 50 A.D.3d 1118, 1120–1121, 858 N.Y.S.2d 660). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged conduct rose to such level ( see Outside Connection, Inc. v. DiGennaro, 18 A.D.3d 634, 634, 795 N.Y.S.2d 669).
The Supreme Court also erred in denying that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as sought to recover damages for loss of consortium insofar as this claim is asserted in connection with the plaintiffs' wrongful death cause of action ( see Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288; Dobin v. Town of Islip, 11 A.D.3d 577, 579, 783 N.Y.S.2d 64; Erbstein v. Savasatit, 274 A.D.2d 445, 446, 711 N.Y.S.2d 458).
The defendants' remaining contentions are without merit. MASTRO, J.P., DICKERSON, HINDS–RADIX and DUFFY, JJ., concur.