Opinion
December 10, 1984
Appeal from the Supreme Court, Suffolk County (Mallon, J.).
Order modified, on the law, by adding thereto a provision granting defendant's motion to dismiss the complaint solely with respect to plaintiffs' requests for (1) compensatory damages for emotional distress and (2) punitive damages. As so modified, order affirmed without costs or disbursements.
Upon a motion to dismiss a complaint, a plaintiff must be given the benefit of every possible favorable inference (see Rovello v Orofino Realty Co., 40 N.Y.2d 633, 634) and the complaint should not be dismissed if "upon examination of the four corners of the pleading * * * the factual allegations contained therein indicate the existence of a cause of action" ( Melito v. Interboro-Mutual Ind. Ins. Co., 73 A.D.2d 819, 820; see, also, Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275; Reifenstein v. Allstate Ins. Co., 92 A.D.2d 715). So viewed, we hold that the instant complaint alleges a cause of action for breach of contract, and, if plaintiffs ultimately prevail, they may recover consequential damages resulting from said breach.
However, plaintiffs' requests for (1) damages for emotional distress and (2) punitive damages, must be stricken from the complaint. It is beyond cavil that a plaintiff cannot, in an action for breach of contract, recover damages for emotional distress ( Wehringer v. Standard Security Life Ins. Co., 57 N.Y.2d 757). With respect to the issue of punitive damages, it has been consistently held that plaintiffs may not recover such damages without submitting factual allegations that defendant, in its dealings with the general public, engaged in a fraudulent scheme which demonstrates "such wanton dishonesty as to imply a criminal indifference to civil obligations" ( Walker v. Sheldon, 10 N.Y.2d 401, 405; Granato v. Allstate Ins. Co., 70 A.D.2d 948, 949, mot for lv to app den 48 N.Y.2d 610; see, also, Reifenstein v. Allstate Ins. Co., 92 A.D.2d 715, supra; Royal Globe Ins. Co. v. Chock Full O'Nuts Corp., 86 A.D.2d 315, 318-319). "Allegations of breach of an insurance contract, even a breach committed willfully and without justification, are insufficient to authorize recovery of punitive damages" ( Catalogue Serv. v. Insurance Co., 74 A.D.2d 837, 838; see, also, Reifenstein v. Allstate Ins. Co., supra; Kulak v. Nationwide Mut. Ins. Co., 47 A.D.2d 418, 421, revd on other grounds 40 N.Y.2d 140). Viewed from this perspective, the plaintiffs' allegations are insufficient to justify an award of punitive damages. Accordingly, the order appealed from must be modified to the extent indicated.
We have reviewed defendant's remaining contentions, i.e., that the instant action is barred by virtue of (1) an earlier declaratory judgment action between the parties and (2) the Statute of Limitations, and find them to be without merit ( Johnson v. General Mut. Ins. Co., 24 N.Y.2d 42, 51; Teeter v Allstate Ins. Co., 9 A.D.2d 176, 185; Colpan Realty Corp. v. Great Amer. Ins. Co., 83 Misc.2d 730; Boyd Bros. Transp. Co. v Fireman's Fund Ins. Cos., 540 F. Supp. 579, 582, affd 729 F.2d 1407). Mangano, J.P., Gibbons, O'Connor and Brown, JJ., concur.