Opinion
May 14, 1982
Appeal from the Erie County Court, McCarthy, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: County Court properly held that the proof presented was insufficient to support an award of damages for breach of warranty and that there should be a retrial on the issue of damages only with respect to the breach of warranty and negligence causes of action. On the retrial plaintiff should not be bound by the $500 limitation for breach of warranty damages (see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18). County Court correctly held that there can be no basis for recovery of emotional damages in this type of case and that that issue should not be submitted to the jury in the retrial. We agree also with County Court that the record presents no basis for the award of punitive damages. We note that the complaint alleges no malicious or intentional conduct on the part of defendant. Accordingly, the damages on retrial should be limited to compensatory damages resulting from the breach of warranty and from defendant's negligence.