Hall v. Rite Aid Corp.

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered August 12, 2005 in a personal injury action. The order denied with prejudice defendants’ mo [1161] tion for dismissal/summary judgment dismissing plaintiff’s claim for punitive damages. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by providing that the motion is denied without prejudice and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained after taking medication provided to her by defendants upon filling her prescription. The complaint alleges that defendants were negligent in filling plaintiff’s prescription with a drug that was 10 times the strength of that prescribed. The complaint further alleges that plaintiff warned the pharmacist that the pills did not look similar in size or color to the ones she had been taking and that defendants nevertheless failed to confirm the accuracy of the prescription or to compare the suspect prescription to the reference materials available at the pharmacy. The complaint asserted that the negligence of defendants was so egregious that it rose to the level of wanton and reckless conduct meriting an award of punitive damages. Defendants moved, pursuant to CPLR 3211 (a) (7) and 3212, for “dismissal/summary judgment dismissing plaintiff’s claim for punitive damages.” Supreme Court denied defendants’ motion with prejudice. We conclude that the court properly denied the motion. In light of the fact that no discovery had been undertaken prior to the motion, however, we further conclude that the motion should have been denied without prejudice (see generally Welch Foods v Wilson, 277 AD2d 882, 883 [2000]; McNeil v Wagner Coll., 246 AD2d 516). We therefore modify the order accordingly. Present— Gorski, J.P, Martoche, Smith and Green, JJ.