Opinion
April 14, 1993
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Callahan, J.P., Pine, Fallon, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this wrongful death action, plaintiffs moved for leave to amend their complaint to assert a claim for, inter alia, punitive damages and a cause of action for loss of consortium. That motion was denied. Absent prejudice or surprise, leave to amend should be freely granted (CPLR 3025 [b]; see, e.g., Kusak v Allstate Ins. Co., 190 A.D.2d 1050).
With respect to plaintiffs' claim for punitive damages, defendants have demonstrated neither prejudice nor surprise. Moreover, plaintiffs' claim for punitive damages does not constitute an independent cause of action (see, Knibbs v Wagner, 14 A.D.2d 987; Gill v Montgomery Ward Co., 284 App. Div. 36), but rather rests on the same factual circumstances as those forming the basis of the original complaint. It will be for the trial court to determine whether there is a reasonable basis in the evidence for the jury to find that defendants' conduct was so wanton and reckless that an award of punitive damages would be justified (see, Sweeney v McCormick, 159 A.D.2d 832; PJI 2:278). Thus, Supreme Court abused its discretion in denying plaintiffs leave to amend the complaint to assert allegations supporting a claim for punitive damages.
Supreme Court properly denied plaintiffs' motion for leave to amend the complaint to add a cause of action for loss of consortium. There is no recovery for loss of consortium in a wrongful death action (Liff v Schildkrout, 49 N.Y.2d 622, 633-634, rearg denied sub nom. Grant v Guidotti 49 N.Y.2d 1048; see also, EPTL 5-4.3; Gonzalez v New York City Hous. Auth., 77 N.Y.2d 663, 667-668).