Opinion
2013-05-9
AXA MEDITERRANEAN HOLDING, S.P., Plaintiff–Appellant, v. ING INSURANCE INTERNATIONAL, B.V., Defendant–Respondent.
Schlam Stone & Dolan LLP, New York (Jeffrey M. Eilender of counsel), for appellant. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Daniel J. Toal of counsel), for respondent.
Schlam Stone & Dolan LLP, New York (Jeffrey M. Eilender of counsel), for appellant.Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Daniel J. Toal of counsel), for respondent.
, P.J., TOM, SWEENY, RENWICK, RICHTER, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about February 22, 2012, which, to the extent appealed from, granted defendant's motion to dismiss the cause of action for breach of contract related to labor organizing activity and the request for punitive damages, unanimously affirmed, with costs.
Pursuant to § 13.1 of the parties' stock purchase agreement, all claims for breach of representation and warranty expire after one year of closing on the sale, unless plaintiff provides defendant with a notice of claim “satisfying the content of Section 11.2(a),” which requires that a notice of claim set forth the existence of a claim and, if possible, the facts underlying the claim. Plaintiff's July 17, 2009 notice of claim was timely but did not allege a breach of the labor organizing representation and warranty contained in § 2.14(b) of the agreement; it alleged only a breach of certain employment-related representations contained in § 2.14(d). Plaintiff having failed to provide defendant with a timely notice of its claim under § 2.14(b), the claim expired.
Section 11.1(a)(5) of the stock purchase agreement prohibits claims for punitive damages (other than any such damages payable pursuant to a third-party claim). Contrary to plaintiff's contention, while § 11.1(a) exempts claims involving allegations of fraud or intentional or willful misconduct from the limitations therein, it does not override this prohibition. Nothing in § 11.1(a) suggests that the parties agreed to permit a punitive damages request in connection with a breach of contract claim—even if such an agreement were valid ( see Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 360, 386 N.Y.S.2d 831, 353 N.E.2d 793 [1976] [“The freedom of contract does not embrace the freedom to punish, even by contract”] ). In any event, punitive damages are not recoverable because defendant's alleged conduct is not actionable as a tort independent of its alleged failure to perform its contractual obligations ( see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315–316, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995] ). The mere allegation that the alleged breach of contract was “maliciously intended” or constituted “ willful misconduct” does not render the breach of contract claim a separate and independent tort claim ( see OFSI Fund II, LLC v. Canadian Imperial Bank of Commerce, 82 A.D.3d 537, 539, 920 N.Y.S.2d 8 [1st Dept. 2011], lv. denied17 N.Y.3d 702, 2011 WL 2183850 [2011] ).
We have considered plaintiff's remaining arguments and find them unavailing.