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JEFF F. GAUGER AND CHARLENE M. GAUGER, INDIVIDUALLY AND AS CO-ADMINISTRATORS OF THE ESTATE OF KAYLA ANN GAUGER, DECEASED, PLAINTIFFS-RESPONDENTS, v. REZA GHAFFARI, M.D., REZA GHAFFARI, M.D., P.C., SARA J. PARKER, CNM, AND COTTRILL'S PHARMACY, INC., DEFENDANTS-APPELLANTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the claim for punitive damages and as modified the order is affirmed without costs.

Memorandum: In this wrongful death action alleging medical malpractice, Supreme Court erred in denying that part of the motion of Reza Ghaffari, M.D., Reza Ghaffari, M.D., P.C., and Sara J. Parker, CNM (collectively, defendants) seeking dismissal of the claim for punitive damages pursuant to CPLR 3211(a)(7). "Punitive damages may be awarded when a defendant's conduct is so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" ( Dumesnil v. Proctor Schwartz, 199 A.D.2d 869, 870). Here, the negligence alleged "does not approach the level of gross indifference to patient care necessary to support a claim for punitive damages" ( Pascazi v. Pelton, 210 A.D.2d 910, 910). We therefore modify the order accordingly. We have considered defendants' remaining contention and conclude that it lacks merit.

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GAUGER v. GHAFFARI
(Jun 14, 2004)