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GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ gross negligence cause of action and demand for punitive damages should not have been dismissed. Plaintiffs alleged the defendant insurer (State Farm) and the defendant engineering firm (H2M) were grossly negligent in supervising the remediation of oil contamination on plaintiffs’ property. The Second Department noted that the causes of action in the amended complaint related back to the allegations in the original complaint and were not, therefore time-barred:

The Supreme Court should not have granted those branches of State Farm’s and H2M’s motions which were to dismiss the cause of action alleging gross negligence insofar as asserted against each of them. As the original complaint gave notice of the transactions or occurrences to be proven as to the gross negligence causes of action, those causes of action related back to the date of timely filing of the original complaint … .

The amended complaint stated a viable gross negligence cause of action as against State Farm and H2M. Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” … . “To constitute gross negligence, a party’s conduct must smack[ ] of intentional wrongdoing’ or evince[ ] a reckless indifference to the rights of others'”… .. Generally, the question of gross negligence is a matter to be determined by the trier of fact… .

The allegations, inter alia, that State Farm and H2M greatly exacerbated the existing damage to the property by causing the spread of the existing contamination and by directing the backfilling of areas of the property after leaving in place significant existing contamination are sufficient to support a gross negligence cause of action … . Bennett v State Farm Fire & Cas. Co., 2018 NY Slip Op 03499, Second Dept 5-16-18

​NEGLIGENCE (GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (RELATION BACK, GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/INSURANCE LAW (GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/ENVIRONMENTAL LAW (GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/RELATION BACK (AMENDED COMPLAINT, GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))

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