Opinion
August 27, 1984
Appeal from the Supreme Court, Kings County (Hirsch, J.).
Order modified, as an exercise of discretion, by granting the motion to the extent of striking from the supplemental verified complaint paragraphs "THIRTY-SIXTH" through "FORTY-THIRD", inclusive and the following language from the "WHEREFORE" clause: "and for the further sum of ONE HUNDRED THOUSAND ($100,000.) dollars as punitive damages". As so modified, order affirmed, without costs or disbursements.
Paragraphs "THIRTY-SIXTH" through "FORTY-THIRD" appear to raise allegations in the nature of abuse of process in this action Such allegations are not properly part of a supplemental pleading, but should more appropriately be raised in an independent action (see 3 Weinstein-Korn-Miller, N Y Civ Prac, par 3025.17, citing Herzog v Herzog, 43 Misc.2d 1062, 1063 [Gabrielli, J.]; Pen. Pat Motors v 104th St. Holding Corp., 22 Misc.2d 847, 852; Stein. v Baff, 197 Misc. 509, 510). Further, the allegations of fraud do not rise to such a level as would warrant a claim for punitive damages (see Banco Nacional v Bremar Holdings Corp., 492 F. Supp. 364, 373-374; Walker v Sheldon, 10 N.Y.2d 401, 404-406; see, also, Reinah Dev. Corp. v Kaaterskill Hotel Corp., 59 N.Y.2d 482; Jones v Hospital for Joint Diseases Med. Center, 96 A.D.2d 498; Frame v Horizons Wine Cheese, 95 A.D.2d 514; Gale v Kessler, 93 A.D.2d 744; J.G.S., Inc. v Lifetime Cutlery Corp., 87 A.D.2d 810).
We have considered appellant's remaining contentions and find them to be without merit. Thompson, J.P., Weinstein, Brown and Eiber, JJ., concur.