77 Misc. 2d 528 | N.Y. App. Term. | 1974
Dissenting Opinion
(dissenting). I agree that the third cause of action as presently pleaded does not justify granting plaintiff punitive damages. I also agree that plaintiff is not entitled to counsel fees as an element of damages in the pending action. In my view, however, plaintiff should be afforded the right, if he should be so advised and if this is so, to amend the complaint to allege facts indicating that the wrong complained of was morally culpable or was actuated by evil and reprehensible motives (Walker v. Sheldon, 10 N Y 2d 401, 404-405; Faulk v. Aware, Inc., 19 A D 2d 464, 471, affd. 14 N Y 2d 899).
Fine and Dudley, JJ., concur in Per Curiam opinion; Markowitz, P. J., dissents in part in memorandum.
Order reversed and dismissal granted.
Lead Opinion
The right of plaintiff to recover punitive damages and counsel fees is not established by the allegations that the breaches by defendant of its obligations under the hospital indemnity policy of insurance were committed 1 ‘ willfully and without justification ” (see Walker v. Sheldon, 10 N Y 2d 401; Buttignol Constr. Co. v. Allstate Ins. Co., 22 A D 2d 689, affd. 17 N Y 2d 476; Kronish, Lieb, Shainswit, Weiner & Hellman v. Reynolds, 33 A D 2d 366).
Order reversed with $10 costs, and the motion to dismiss the third cause of action is granted.