BROOKING v. POLITO


16 A.D.3d 898 (2005)

791 N.Y.S.2d 686

WILLIAM F. BROOKING, SR., Individually and as Executor of THERESA A. BROOKING, Appellant, v. JOSEPH M. POLITO et al., Respondents, et al., Defendants.

Appellate Division of the Supreme Court of the State of New York, Third Department.

March 17, 2005.


Peters, J.

In this medical malpractice action, plaintiff, on behalf of decedent, seeks to recover both compensatory and punitive damages against defendants Joseph M. Polito and Albany Gastroenterology Consultants (hereinafter collectively referred to as defendants) for their failure to, among other things, timely diagnose her cancerous condition; she died in February 2004 from metastic pancreatic cancer. In this motion seeking partial dismissal of the complaint, defendants successfully obtained the dismissal of plaintiff's fourth cause of action against them seeking the imposition of punitive damages.

The order from which plaintiff appeals is affirmed. In a medical malpractice action, punitive damages are only recoverable where the conduct in question shows "a wrongful motive on the defendant's part, willful or intentional misdoing, or a reckless indifference equivalent to willful or intentional misdoing" (Frenya v Champlain Val. Physicians' Hosp. Med. Ctr., 133 A.D.2d 1000, 1000 [1987]; see McDougald v Garber, 73 N.Y.2d 246, 254 [1989]; Washington v Community Health Plan, 220 A.D.2d 972, 973 [1995]; see also Rey v Park View Nursing Home, 262 A.D.2d 624, 627 [1999]; Luby v St. John's Episcopal Hosp., 220 A.D.2d 390, 390 [1995]; Spinosa v Weinstein, 168 A.D.2d 32, 42-43 [1991]; Ross v Community Gen. Hosp. of Sullivan County, 150 A.D.2d 838, 842 [1989]). While the conduct alleged against defendants is indeed significant, it is undisputed that since the commencement of care in November 2002, they performed various tests on decedent, which included blood tests, CAT scans, an MRI and ultrasound, analyzed those tests and recommended treatment accordingly. Even viewing plaintiff's allegations as true, none of them amounted to a "`conscious disregard of the rights of others'" (Washington v Community Health Plan, supra at 973, quoting Welch v Mr. Christmas, 57 N.Y.2d 143, 150 [1982]) such that a "wrongful motive . . . willful or intentional misdoing, or a reckless indifference" (Frenya v Champlain Val. Physicians' Hosp. Med. Ctr., supra at 1000) could be discerned.

Accordingly, plaintiff's claim for punitive damages against defendants was properly stricken.

Ordered that the order is affirmed, without costs.


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