Opinion
April 17, 1989
Appeal from the Supreme Court, Rockland County (Bergerman, J.).
Ordered that the order is modified, by adding a provision to the effect that the plaintiffs' amended complaint may not contain demands for treble damages with respect to the first six causes of action; and as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the plaintiffs' time to serve the amended complaint is extended until 20 days after the service upon them of a copy of this decision and order, with notice of entry.
The plaintiff corporation sought leave to amend its complaint in order to (1) add several new factual allegations, (2) add several new theories of liability, (3) add a new individual plaintiff, and (4) assert claims for treble damages with respect to 6 out of the 7 newly pleaded causes of action. The additional factual allegations, and the newly pleaded causes of action, considered together, are not so patently insufficient so as to warrant an examination of their merits upon a motion to amend (see generally, DeGuire v. DeGuire, 125 A.D.2d 360; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204, 205; Norman v. Ferrara, 107 A.D.2d 739; Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512).
Furthermore, some of the newly pleaded causes of action appear to state claims which exist in favor of the newly added individual plaintiff, rather than the plaintiff corporation of which he is the sole shareholder. Thus, that individual may be added as a plaintiff in order to assert claims which may not be asserted in the name of the corporation (cf., Thomson McKinnon Sec. v. Cioccolanti, 135 A.D.2d 624). However, we agree with the defendant's contention that treble damages may not be awarded in the absence of specific statutory authority (see, Springer v Viking Press, 90 A.D.2d 315, 317, affd 60 N.Y.2d 916; 36 N.Y. Jur 2d, Damages, § 185), so that the motion to amend was improperly granted to the extent such demands for treble damages were allowed. The plaintiffs may, however, in their amended complaint, assert a claim for punitive damages which will constitute "`an element of the single total claim for damages'" (Fiesel v. Nanuet Props. Corp., 125 A.D.2d 292; Beck v. General Tire Rubber Co., 98 A.D.2d 756; see, Glick v. Nozell, 94 A.D.2d 956; Dooley v Bacardi Imports, 98 A.D.2d 993; cf., Goldin v. Conway Motors, 122 A.D.2d 834). The plaintiffs' claims are not based solely on breach of contract (cf., Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 358; Baders Residence for Adults v. Telecom Equip. Corp., 90 A.D.2d 764). Of course, we express no opinion as to whether the plaintiffs' claim for punitive damages will be sustainable after a trial. Mangano, J.P., Bracken, Spatt and Harwood, JJ., concur.