Opinion
Index No. 31491/2017E
07-24-2019
ISHAQ, SHAIKH v. GODDUHN, JASON, et al
Unpublished Opinion
Hon. JOHN R. HIGGITT, A.J.S.C.
John R. Higgitt, Judge
The following papers in the NYSCEF System were read on this motion for DISMISSAL, noticed on July 23, 2019 and duly submitted as No. 18 on the Motion Calendar of July 23, 2019
| NYSCEF Doc. Nos. | |
| Notice of Motion - Exhibits and Affidavits Annexed | 33-41 |
| Notice of Cross-Motion - Exhibits and Affidavits Annexed | |
| Answering Affidavit and Exhibits | 42 |
| Replying Affidavit and Exhibits | |
| Filed Papers | |
| Memoranda of Law | |
| Stipulations |
Upon the foregoing papers, the moving defendants' motion to "dismiss non-negligent claims," deemed one pursuant to CPLR 3024(b) seeking to "strike any scandalous or prejudicial matter unnecessarily inserted in a pleading," is granted in part, in accordance with the annexed decision and order.
SHAIKH ISHAQ, Plaintiff, v.
JASON GODDUHN, PENSKE TRUCK LEASING CO., KEY COURIER LOGISTICS, Defendants.
DECISION AND ORDER
Upon defendants' June 26, 2019 notice of motion and the affirmation and exhibits submitted in support thereof; plaintiffs July 22, 2019 affirmation in opposition; and due deliberation; the moving defendants' motion to "dismiss non-negligent claims," deemed one pursuant to CPLR 3024(b) seeking to "strike any scandalous or prejudicial matter unnecessarily inserted in a pleading" (see CPLR 2001), is granted to the extent set forth below.
Although the motion is made on behalf of all defendants, the court notes that the action against defendant Penske Truck Leasing Co. was dismissed by the September 5, 2018 decision and order of the undersigned.
In this action emanating from a motor vehicle accident, plaintiff alleges in paragraph 11 of the complaint and paragraph 3 of the bill of particulars that the accident was due solely to the carelessness, recklessness and negligence of the defendants. The court presumes that in moving "to strike any/all non-negligence claims from this case," the moving defendants seek to strike the references to carelessness and recklessness. To the extent they also seek to dismiss plaintiffs claim for punitive damages, plaintiff has not asserted such claim in the complaint. In any event, a claim for punitive damages cannot exist as an independent cause of action (see Rocanova v Equitable Life Assur. Society, 83 N.Y.2d 603 [1994]; Mayes v UVI Holdings, Inc., 280 A.D.2d 153 [1st Dept 2001]; Greenview Trading Co. v Hershman & Leicher, PC, 108 A.D.2d 468 [1st Dept 1985]), and plaintiffs complaint alleges ordinary negligence, for which punitive damages are not available (see Munoz v Puretz, 301 A.D.2d 382 [1st Dept 2003]).
The inquiry on a motion to strike scandalous or prejudicial material from a pleading pursuant to CPLR 3024(b) is whether the subject allegations are relevant to one of plaintiff s causes of action (see Soumayah v Minnelli, 41 A.D.3d 390 [1st Dept 2007]). Language that is relevant to a cause of action should not be stricken (see Wittels v Sanford, 137 A.D.3d 657 [1st Dept 2016], Iv den 28 N.Y.3d 902 [2016]), and the motion should be denied (see N. Y.C. Health & Hosps. Corp. v St. Barnabas Community Health Plan, 22 A.D.3d 391 [1st Dept 2005]). Matters unnecessary to the viability of the cause of action that would cause undue prejudice to the defendants are properly stricken (see Irving v Four Seasons Nursing & Rehab. Ctr., 121 A.D.3d 1046 [2d Dept 2014]). The determination whether to strike such material is left to the court's discretion (see Matter of Albany Law Sch. v N.Y.State Office of Mental Retardation & Developmental Disabilities, 19 N.Y.3d 106 [2012]). Here, it is apparent that plaintiff seeks recovery under a theory of negligence, and the allegations of carelessness and recklessness are unnecessary to the cause of action.
Furthermore, a bill of particulars is intended to amplify "whatever the pleading pleads" (Linker v County of Westchester, 214 A.D.2d 652, 652 [2d Dept 1995]), and may not be used to allege a theory or claim not asserted in the complaint (see Paterra v Arc Dev. LLC, 136 A.D.3d 474 [1st Dept 2016]; Martinez v Fields, 74 A.D.3d 653, 653 [1st Dept 2010]). Here, plaintiffs bill of particulars contains allegations of carelessness and recklessness that are not relevant or necessary to the cause of action asserted (see Jurado v Kalache, 93 A.D.3d 759 [2d Dept 2012]).
The court notes that while the motion was untimely under CPLR 3024(c), plaintiff did not oppose the motion on that basis. Plaintiffs opposition, while untimely, was not responsive to the issues raised by the motion; accordingly, an adjournment of the motion is unnecessary and the moving defendants' application for same is denied in the exercise of the court's discretion (see 22 NYCRR § 202.8(e)(2); Park Lane N. Owners, Inc. v Gengo, 151 A.D.3d 874 [2d Dept 2017]).
Accordingly, it is
ORDERED, that the moving defendants' motion to "dismiss non-negligent claims," deemed one pursuant to CPLR 3024(b) seeking to "strike any scandalous or prejudicial matter unnecessarily inserted in a pleading," is granted to the extent that references to carelessness and recklessness contained in paragraph 11 of the complaint and paragraph 4 of the bill of particulars are stricken; and it is further
ORDERED, that the motion is otherwise denied; and it is further
ORDERED, that the parties shall appear before the undersigned in Part 14, courtroom 407, at 2:00 p.m. on September 6, 2019 for a preliminary conference.
This constitutes the decision and order of the court.