Opinion
2002-01336
Argued April 21, 2003.
May 12, 2003.
In an action, inter alia, to recover damages for breach of an oral agreement, the defendant appeals from a judgment of the Supreme Court, Kings County (Douglass, J.), dated January 17, 2002, which, upon a jury verdict, is in favor of the plaintiff and against him in the total sum of $2,177,646.80.
Mujica Goodman, New York, N.Y. (Jacob J. Goodman of counsel), for appellant.
Daniel S. Perlman, New York, N.Y., for respondent.
Before: SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff punitive damages in the sum of $100,000; as so modified, the judgment is affirmed, with costs to the plaintiff.
On the parties' prior appeal, we determined, inter alia, that the plaintiff's complaint stated a cognizable cause of action for breach of an oral agreement to share lottery winnings (Johnson v. Spence, 286 A.D.2d 481). Contrary to the defendant's contentions, the jury verdict finding that there was indeed such an oral agreement, and that the defendant breached that agreement when he furtively claimed the winnings in his name alone, is amply supported by the record (see Sau Thi Ma v. Xuan T. Lien, 260 A.D.2d 258; Edwin v. Arackal, 241 A.D.2d 335; Nicastro v. Park, 113 A.D.2d 129). However, we agree with the defendant that the plaintiff has no viable cause of action to recover damages for conversion independent of her breach of contract claim (see Wolf v. National Council of Young Israel, 264 A.D.2d 416; Fiorenti v. Central Emergency Physicians, PLLC, 305 A.D.2d 453 [May 12, 2003]). Accordingly, she may not recover punitive damages (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308).
The defendant's remaining contentions are without merit.
S. MILLER, J.P., KRAUSMAN, LUCIANO and MASTRO, JJ., concur.