Glick v. Nozell

Green and Schnepp, JJ. (dissenting).

We do not agree that plaintiff is entitled to only partial summary judgment. The claim for punitive damages is not a separate cause of action and constitutes an element of the total claim for damages (Mastro Jewelry Corp. v St. Paul Fire & Mar. Ins. Co., 70 AD2d 854; Knibbs v Wagner, 14 AD2d 987). Punitive damages are allowed in addition to compensatory damages. We feel that CPLR 3212 (subd [c]) is applicable to this case since the only triable issues relate to “the amount [and] extent of damages”. The grant of summary judgment may be a Pyrrhic victory since plaintiff must still prove that defendant’s conduct was so gross, wanton or reckless as to justify an award of punitive damages (see PJI 2:278; see, also, 14 NY Jur [rev ed], Damages, § 179), but it is a judgment to which plaintiff is entitled on the issue of liability. We would, therefore, affirm. (Appeal from order of Supreme Court, Oswego County, O’Donnell, J. — summary judgment.) Present — Dillon, P. J., Doerr, Boomer, Green and Schnepp, JJ.