Opinion
November 10, 1986
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Defendant moved to dismiss portions of the first amended complaint alleging intentional infliction of mental distress and conduct in violation of Insurance Law § 40-d (now § 2601) and seeking punitive damages and attorney's fees in connection with a fire loss claim. Plaintiff cross-moved for leave to serve a proposed second amended complaint. The court denied defendant's motion and granted plaintiff's cross motion.
Since the first amended complaint contains no allegation that defendant engaged in any conduct or transactions affecting the general public, the causes of action predicated upon a violation of Insurance Law § 40-d and the request for punitive damages and attorney's fees should have been dismissed (see, Hubbell v Trans World Ins. Co., 50 N.Y.2d 899, 901; Halpin v Prudential Ins. Co., 48 N.Y.2d 906, 907-908; Uniland Dev. Co. v Home Ins. Co., 97 A.D.2d 973).
The court also abused its discretion by allowing plaintiff to replead his claim for punitive damages and attorney's fees. The proposed amendment merely speculates that defendant engaged in a general business practice, and plaintiff has failed to demonstrate by affidavit or otherwise that defendant engaged in any activities harmful to the general public. The court should have denied leave to replead the claim for punitive damages and attorney's fees without prejudice to renewal upon proper papers (CPLR 3211 [e]; Young v Nelson, 23 A.D.2d 531).
Accordingly, the order is modified by dismissing the second, fifth and sixth causes of action of the amended complaint and by denying, without prejudice, the cross motion to the extent it seeks leave to replead a claim for punitive damages and attorney's fees.