614 N.Y.S.2d 513 | N.Y. App. Div. | 1994
Order and judgment (one paper), Supreme Court, New York County (Lewis Friedman, J., upon decision of Harold Baer, Jr., J.), entered on or about April 29, 1993, which, inter alia, granted defendant insurer’s cross motion for summary judgment to the extent of declaring that two-thirds of a treble damages award under RPAPL 853 are penal in nature and not indemnifiable by defendant insurer to plaintiff insured, unanimously affirmed, without costs.
We agree with the IAS Court that treble damages under RPAPL 853 are penal in nature, intended by the Legislature "to discourage resort to wrongful evictions by landlords and to punish severely those who engage in such conduct” (155 Misc 2d 547, 550). "Treble damages are a statutory remedy based on the Legislature’s desire to protect a tenant from unlawful eviction and to punish certain violators” (Lyke v Anderson, 147 AD2d 18, 30-31), and, while not the equivalent of common-law punitive damages (supra), similarly are not automatic but discretionary (supra, at 27-28, citing Mannion v Bayfield Dev. Co., 134 Misc 2d 1060). In view of these "pertinent” analogies to punitive damages (supra, at 28), it would be against public policy to permit indemnification of that part of a damage award under RPAPL 853 in excess of compensatory amount (see, Hartford Acc. & Indent. Co. v Village of Hempstead, 48 NY2d 218). Concur—Carro, J. P., Rosenberger, Wallach, Kupferman and Williams, JJ.
