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Empire State Fed. S L v. Commercial Un. Ins. Co.

Appellate Division of the Supreme Court of New York, Second Department
Jan 15, 1979
67 A.D.2d 676 (N.Y. App. Div. 1979)

Opinion

January 15, 1979


In an action, inter alia, to recover the proceeds of a fire insurance policy, defendant appeals from an order of the Supreme Court, Westchester County, dated May 5, 1978, which denied its motion to dismiss the second cause of action (for punitive damages) on the ground of legal insufficiency. Order reversed, on the law, with $50 costs and disbursements, and motion granted. Initially, it must be noted that a demand for punitive damages does not constitute a separate cause of action for pleading purposes (Knibbs v. Wagner, 14 A.D.2d 987; Dworski v. Empire Discount Corp., 46 Misc.2d 844). Of more significance for present purposes, however, is the fact that the complaint, as it now stands, is lacking any factual allegations setting forth that type of gross, wanton or willful fraud or other morally culpable conduct upon which punitive damages may be awarded (Borkowski v Borkowski, 39 N.Y.2d 982; cf. Greenspan v. Commercial Ins. Co. of Newark, N.J., 57 A.D.2d 387). Moreover, the record taken as a whole fails to demonstrate that the defendant in any way exhibited that high degree of moral turpitude which might justify the imposition of such damages (see Luxonomy Cars v. Citibank, N.A., 65 A.D.2d 549). On the contrary, defendant's answer is based upon allegations which, if proven, would constitute a valid defense (see M.S.R. Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858). Damiani, J.P., Titone, Suozzi and Shapiro, JJ., concur.


Summaries of

Empire State Fed. S L v. Commercial Un. Ins. Co.

Appellate Division of the Supreme Court of New York, Second Department
Jan 15, 1979
67 A.D.2d 676 (N.Y. App. Div. 1979)
Case details for

Empire State Fed. S L v. Commercial Un. Ins. Co.

Case Details

Full title:EMPIRE STATE FEDERAL SAVINGS LOAN ASSOCIATION, Respondent, v. COMMERCIAL…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 15, 1979

Citations

67 A.D.2d 676 (N.Y. App. Div. 1979)