Opinion
November 10, 1960
Order, entered March 28, 1960, denying a motion by defendant Sheldon for relief pursuant to rule 103 of the Rules of Civil Practice, unanimously modified, on the law, on the facts and in the exercise of discretion, to the extent of striking from paragraph Seventh (a) (i) of the complaint the words beginning with "to book publishers" and ending with "Federal Trade Commission", striking all of the allegations in paragraph Seventh (a) (ii), and striking all of the matter in paragraph Tenth beginning with the words "until the completion of a proceeding" to the end of the paragraph and substituting therefor the words "until the year 1959"; and, as so modified, the order is affirmed, with $20 costs and disbursements to the appellant Sheldon. The stricken matter is clearly irrelevant and will unduly prejudice the defendant if permitted to remain in the pleading. As to the allegations in paragraph Eleventh of the complaint, which conclude with the claim that plaintiff is entitled to punitive damages, while ordinarily punitive damages will not be allowed in an action in fraud and deceit ( Oehlhof v. Solomon, 73 App. Div. 329; Toho Bussan Kaisha, Ltd. v. American President Lines, 265 F.2d 418), it may be that plaintiff can at a trial prove that defendants' actions constituted a virtually larcenous scheme to trap generally the unwary in which event punitive damages may be recoverable on the theory of wanton and malicious conduct. Under the circumstances, the allegations relatable to punitive damages may remain in the pleading until the facts are developed on a trial. An amended complaint eliminating the allegations ordered to be stricken hereinabove is to be served within 10 days after service of a copy of the order to be entered hereon, with notice of entry. Settle order on notice. Order, entered March 28, 1960, denying a motion by the defendants other than Sheldon, for relief pursuant to rule 103 of the Rules of Civil Practice and for a dismissal of the complaint pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice unanimously modified, on the law, on the facts, and in the exercise of discretion, to the extent of granting the motion under rule 103 by striking from the complaint the same allegations ordered to be stricken in the companion appeal of the defendant Sheldon, decided simultaneously herewith, and, as so modified, the order is affirmed, with $20 costs and disbursements to the appellants, other than Sheldon. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Valente and Eager, JJ.