Opinion
No. 533508
06-30-2022
Frank A. Nazzarro Jr., Respondent, v. Anthony Salvatore, Appellant.
O'Connor, O'Connor, Bresee & First, PC, Albany (William H. Baaki of counsel), for appellant. The Towne Law Firm, PC, Albany (James T. Towne Jr. of counsel), for respondent.
Calendar Date: May 31, 2022
O'Connor, O'Connor, Bresee & First, PC, Albany (William H. Baaki of counsel), for appellant.
The Towne Law Firm, PC, Albany (James T. Towne Jr. of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Aarons and McShan, JJ.
Aarons, J.
Appeal from an order of the Supreme Court (Mott, J.), entered June 8, 2021 in Ulster County, which granted plaintiff's motion to amend the complaint.
Plaintiff commenced this action for alleged personal injuries sustained after defendant backed his dump truck into him while at a gas station. Plaintiff thereafter moved to amend the complaint to add a claim for punitive damages due to defendant's "dangerous, reckless and careless manner" in operating the dump truck and defendant's "conscious, wanton disregard for [plaintiff's] safety" and the safety of others. Supreme Court granted the motion, prompting this appeal by defendant. We affirm.
Defendant's assertion that his conduct did not rise to the level of reprehensible misconduct so as to warrant punitive damages is without merit. The record discloses that defendant was verbally arguing with plaintiff and plaintiff's friend, whose vehicle was blocking a pump. According to the friend, he planned on moving his vehicle after putting items away but defendant wanted it done immediately. The friend testified at his deposition that defendant said, "if you're not going to move it[,] I'm going to move it for you." While plaintiff was between the friend's trailer and defendant's dump truck, defendant "revved th[e] motor" and backed into the trailer. Before being able to jump out of the way, plaintiff was hit. A nonparty witness testified at a deposition that defendant "did it on purpose" and that plaintiff could have been killed. The nonparty witness also stated that, after plaintiff escaped, defendant "revved the truck again and continued to hit [the] trailer."
In view of the proof of defendant's aggressive operation of his dump truck, plaintiff's proposed claim is not palpably insufficient or patently devoid of merit (see Acker v Garson, 306 A.D.2d 609, 610 [2003]; Rahn v Carkner, 241 A.D.2d 585, 586 [1997]). Although defendant testified to a contrary version of the events at issue, plaintiff was not required to prove the merits of his proposed claim at this juncture (see Green Tree Servicing, LLC v Feller, 159 A.D.3d 1246, 1247 [2018]). Taking into account that leave to amend "shall be freely given" (CPLR 3025 [b]), Supreme Court providently exercised its discretion in granting plaintiff's motion (see Rahn v Carkner, 241 A.D.2d at 586).
Garry, P.J., Egan Jr., Clark and McShan, JJ., concur.
ORDERED that the order is affirmed, with costs.