FILED: NEW YORK COUNTY CLERK 04/15/ :35 PM INDEX NO /2014 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/15/2015

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1 FILED: NEW YORK COUNTY CLERK 04/15/ :35 PM INDEX NO /2014 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/15/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x TERRENCE LOWENBERG, Index No.: /14 (ECF) Plaintiff, v. STEVEN KRAUSE, FURKAN UZUNSAC SUED INCORRECTLY HEREIN AS FURKAN UZUNSAC SUED INCORRECTLY HEREIN AS MAHMET UZANCS, BENJAMIN KRAUSE AND SANDRA KRAUSE, MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF S CAUSES OF ACTION FOR PUNITIVE DAMAGES Defendants x PRELIMINARY STATEMENT This Memorandum of Law is submitted in support of the Motion by Defendants, Steven Krause, Benjamin Krause and Sandra Krause for an Order dismissing the Plaintiff s causes of action for punitive damages, and for such other and further relief as this Court deems just and proper. It is well-settled in New York there is no independent cause of action for punitive damages. As such, Plaintiff s Second Cause of Action for Punitive Damages against Steven Krause and Sixth Cause of Action against Benjamin Krause and Sandra Krause should be dismissed. Moreover, Plaintiff s Verified Amended Complaint fails to plead sufficient facts to set forth allegations of culpable conduct on the part of these defendants that would support a demand for punitive damages.

2 QUESTION PRESENTED Whether Plaintiff s causes of action for punitive damages against defendant Steven Krause, Benjamin Krause and Sandra Krause should be dismissed? STATEMENT OF FACTS This Court is respectfully referred to the Affirmation of Maureen E. Peknic, Esq., along with the Exhibits annexed thereto, submitted in support of the instant motion, for the facts relevant to the arguments set forth herein. Plaintiff alleges damages arising from his dog, Leo, being bitten by another dog named Akira, who Plaintiff alleges was either owned or harbored by Defendant Steven Krause or Defendant Furkan Uzansac 1 and/or allowed to be kept at the residence owned or maintained by Benjamin and Sandra Krause. See Ex. A to the Affirmation of Maureen Peknic. The incident allegedly occurred on East 65 th Street when Plaintiff s dog walker was walking Leo and Akira allegedly bit Leo. Id. Plaintiff further alleges that Defendants knew or should have known of Akira s dangerous propensities toward other dogs prior to the date on which Akira attacked Leo. Id. In addition to alleging causes of action for negligence against Steven Krause and Benjamin and Sandra Krause (respectively, Plaintiff s First and Fifth Causes of Action, id.

3 at 2-20 and 50-73), Plaintiff also alleges separate causes of action for punitive damages against these defendants (respectively, Plaintiff s Second and Sixth Causes of Action). See id. at and ARGUMENT I. PLAINTIFF CANNOT ASSERT CAUSES OF ACTION FOR PUNITIVE DAMAGES AS SUCH CAUSES OF ACTION ARE NOT RECOGNIZED UNDER NEW YORK LAW It is well-settled hornbook law that: There is no separate cause of action for punitive damages; a claim for punitive damages does not constitute or state a separate cause of action. New York does not recognize an independent cause of action for punitive damages. 36 N.Y. Jur. 2d Damages 186. When faced with a complaint containing punitive damages as a separate cause of action, the courts of this state routinely dismiss such causes of action. See Cook v. Hartford Fire Ins. Co., 97 A.D.2d 731, 469 N.Y.S.2d 4 (1 st Dep t 1983) ( it is wellsettled that a claim for punitive damages may not be interposed as a separate cause of action ); APS Food Systems, Inc. v. Ward Foods, Inc., 70 A.D.2d 483, 421 N.Y.S.2d 223 (1 st Dep t 1979) ( The third cause of action for punitive damages cannot stand as a separate cause of action since it constitutes merely an element of the single total claim for damages on the underlying causes of action ); Martin v. Columbia Greene Humane Society, 17 1 Defendant Furkan Uzansac is not represented by the undersigned counsel and is not a party to this motion.

4 A.D.3d 839, 793 N.Y.S.2d 586 (3d Dep t 2005) ( the claim for punitive damages was improperly asserted as a separate (sixth) cause of action and that cause of action should have been dismissed ); Ehrlich v. Incorporated Village of Sea Cliff, 95 A.D.3d 1068, 945 N.Y.S.2d 98 (2d Dep t 2012) ( As the plaintiffs correctly concede, the twelfth cause of action is not viable, as New York law does not recognize a separate cause of action for punitive damages. ). In clear defiance of the well-settled law of this state, Plaintiff improperly asserted separate causes of action for punitive damages against Steven Krause (see the Second Cause of Action at of Plaintiff s Verified Amended Complaint) and Benjamin and Sandra Krause (see the Sixth Cause of Action at 74-79). In fact, these two causes of action are largely duplicative of Plaintiff s causes of action for negligence against Steven Krause (cf. the First Cause of Action at at 2-20) and Benjamin and Sandra Krause (cf. the Fifth Cause of Action at 50-73). Indeed, the punitive damages causes of action allege that such damages are based on, among other things, that these defendants were allegedly acting with a reckless, careless, and negligent manner. See Plaintiff s Verified Amended Complaint at 26 and 79 (emphasis added). The only conceivable explanation for Plaintiff asserting separate punitive damages causes of action, in violation of New

5 York law, is that because his compensatory damage claim for negligence is limited to $10,000, he is improperly seeking to inflate his damages by claiming punitive damages of $50,000 from each of these defendants, for among other reasons, to have this case remain in Supreme Court, rather than be transferred to the Civil Court of the City of New York. See CPLR 325(d) and UR (a). As the law in New York is well-settled that no separate cause of action exists for punitive damages, Plaintiff s Second and Sixth Causes of Action should be dismissed. See Cook, 97 A.D.2d at 731, 469 N.Y.S.2d at 5; APS Food Systems, Inc., 70 A.D.2d at 487, 421 N.Y.S.2d at 226. II. PLAINTIFF S PLEADINGS DO NOT SUPPORT A DEMAND FOR PUNTIVE DAMAGES In general, in order for punitive damages to be awarded, the plaintiff must demonstrate that the defendant s conduct is intentional and deliberate, has fraudulent or evil motive, and has the character of outrage frequently associated with crime. Morsette v. The Final Call, 309 A.D.249, 764 N.Y.S.2d 416 (1 st Dep t 2003). In other words, there must be something unusual or extraordinary about the defendants conduct which warrants punitive damages; that is, the case must be singularly rare in terms of moral culpability. Munoz v. Puretz, 301 A.D.3d 382, 753 N.Y.S.2d 463 (1 st Dep t 2003) (punitive damages are not

6 available for ordinary negligence); Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 85 A.D3d 457, 924 N.Y.S.2d 376 (1 st Dep t 2011) (even the commission of an intentional tort requiring proof of common law malice is insufficient to support an award of punitive damages; there must be a showing of aggravation or outrage, or fraudulent or evil motive on defendants part). Because punitive damages are only awarded under extraordinary and rare circumstances, a court will dispose of punitive damages demands in a complaint via a motion to dismiss if the complaint alleges in conclusory and conjectural fashion that defendants were grossly, willfully and wantonly negligent and acted with reckless indifference to the health and safety of plaintiff. Barnes v. Hodge, 118 A.D.3d 633, 989 N.Y.S.2d 467 (1 st Dep t 2014) ( Although on a motion to dismiss plaintiffs allegations are presumed to be true and accorded every favorable inference, conclusory allegations claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss. ). Such legal conclusions in a complaint are simply insufficient, absent supporting factual allegations, to demonstrate that defendants engaged in conduct

7 which rose to the high level of moral culpability to support a claim for punitive damages. Id. 2 Here, Plaintiff has not met the pleading requirements to demand punitive damages. The Verified Amended Complaint merely states that Plaintiff s various allegations under his cause of action for negligence against Steven Krause show he acted defiantly, irresponsibly, and with malice. See Verified Amended Complaint at 22. But Plaintiff pleads no facts that show how any of Steven Krause s actions showed the necessary malice to support a demand for punitive damages. Plaintiff does not even allege the same for Benjamin and Sandra Krause, alleging instead that their actions show that Defendant Furkan Uzunsac sued incorrectly herein as Mahmet Uzancs acted defiantly, irresponsibly, and with malice. See id. at 75. Similarly, Plaintiff s allegations at 26 and 79 against Steven Krause and Benjamin and Sandra Krause, respectively, merely tack on the word malice to these defendants alleged conduct, which Plaintiff initially describes as reckless, careless, and negligent. In fact, the allegations in those two paragraphs read that the dog at issue was acting with malice, rather than the defendants. See id. 2 The Court further held that the plaintiff could not maintain his punitive damages demand on the hope that discovery might someday provide a basis for it. However, should discovery reveal facts supporting a claim for punitive damages, plaintiff could of course move for leave to replead the demand. Id.

8 In sum, Plaintiff s Verified Amended Complaint fails to state sufficient facts to allege other than in conclusory fashion that Steven Krause and Benjamin and Sandra Krause acted with the requisite degree of culpability to support a demand for punitive damages. Therefore, not only should Plaintiff s second and sixth causes of action be dismissed, but Plaintiff should not be allowed to demand punitive damages going forward in this matter. See Barnes, 118 A.D.3d at 633, 989 N.Y.S.2d at 468. CONCLUSION For all of the foregoing reasons, Defendants Steven Krause, Benjamin Krause, and Sandra Krause respectfully request their motion to dismiss be granted and Plaintiff s Second Cause of Action against Steven Krause and Sixth Cause of Action against Benjamin and Sandra Krause for punitive damages and any demand

9 for punitive damages be dismissed, as well as such other and further relief as the Court deems just and necessary DATED: New York, New York April 15, 2015 Yours, etc., HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendants, Steven Krause, Benjamin Krause and Sandra Krause Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) By: Maureen E. Peknic

10 Index No.: /14 (ECF) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TERRENCE LOWENBERG, Plaintiff, against STEVEN KRAUSE, FURKAN UZUNSAC SUED INCORRECTLY HEREIN AS FURKAN UZUNSAC SUED INCORRECTLY HEREIN AS MAHMET UZANCS, BENJAMIN KRAUSE AND SANDRA KRAUSE, Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PUNITIVE DAMAGES CAUSES OF ACTION RESPECTFULLY SUBMITTED, HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendants Steven Krause, Benjamin Krause and Sandra Krause Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) Maureen E. Peknic Of Counsel