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distinguishing High Fashions as being limited to a particular set of facts and, without any mention of an express contractual provision, holding that in the present case the "factual allegations . . . disclose a cause of action to recover damages for breach of contract and for consequential damages"
Summary of this case from Hold Bros. v. Hartford Casualty InsuranceOpinion
June 22, 1992
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Upon a motion to dismiss a complaint for failure to state a cause of action, a plaintiff must be given the benefit of every favorable inference to be drawn from the complaint (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634). The complaint should not be dismissed if the factual allegations set forth therein indicate the existence of a cause of action (see, Fleming v Allstate Ins. Co., 106 A.D.2d 426, affd 66 N.Y.2d 638, cert denied 475 U.S. 1096). Viewed from this perspective, we hold that the factual allegations set forth in the second cause of action disclose a cause of action to recover damages for breach of contract and for consequential damages arising from a breach (see, Fleming v. Allstate Ins. Co., supra; Korona v. State Wide Ins. Co., 122 A.D.2d 120). The case of High Fashions Hair Cutters v. Commercial Union Ins. Co. ( 145 A.D.2d 465), relied upon by the defendant, is distinguishable, since that case involved a motion for summary judgment on a special multiperil policy covering a business which contained very different coverage language than the homeowner's policy herein, and the court specifically found that the insurer therein had "pursued a proper investigation of the [insured's] claim".
On the other hand, it is well settled that "[a] claim for punitive damages against an insurer is cognizable in New York only in circumstances where a plaintiff has made sufficient evidentiary allegations of ultimate facts of fraudulent and deceitful scheme in dealing with the general public as to imply a criminal indifference to civil obligations" (Holoness Realty Corp. v. New York Prop. Ins. Underwriting Assn., 75 A.D.2d 569, 570; Philips v. Republic Ins. Co., 108 A.D.2d 845, affd 65 N.Y.2d 1000; Catalogue Serv. v. Insurance Co., 74 A.D.2d 837; Granato v Allstate Ins. Co., 70 A.D.2d 948; Royal Globe Ins. Co. v. Chock Full O'Nuts Corp., 86 A.D.2d 315, 321). The mere allegations of a breach of an insurance contract, "even a breach committed willfully, and without justification * * * [is] insufficient for recovery of punitive damages" (Valis v. Allstate Ins. Co., 132 A.D.2d 658, 659; Catalogue Serv. v. Insurance Co., supra). Judged in accordance with the foregoing principles, the factual allegations contained in the third cause of action of the complaint were insufficient to support a claim for punitive damages. In any event, we note that a demand for punitive damages may not constitute a separate cause of action for pleading purposes (see, Holoness Realty Corp. v. New York Property Ins. Underwriting Assn., supra; Catalogue Serv. v. Insurance Co., supra). Mangano, P.J., Harwood, Balletta and Eiber, JJ., concur.