Opinion
November 15, 1985
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Pine and Schnepp, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred by not dismissing plaintiff's cause of action for intentional tort, as well as plaintiff's claim for punitive damages. Plaintiff's complaint alleging breach of contract does not allege a breach of a duty separate and distinct from the breach of contract; therefore, the cause of action in tort should be dismissed (Charles v Onondaga Community Coll., 69 A.D.2d 144, 148, appeal dismissed 48 N.Y.2d 650; see also, Wegman v Dairylea Coop., 50 A.D.2d 108, 112, lv. dismissed 38 N.Y.2d 918). Further, plaintiff's claim for punitive damages should be dismissed because punitive damages cannot be recovered in an action for breach of contract (Carney v Memorial Hosp. Nursing Home, 101 A.D.2d 990, 991, mod on other grounds 64 N.Y.2d 770; Charles v Onondaga Community Coll., supra, p. 149).