Opinion
November 22, 1983
Order entered September 22, 1982 in Supreme Court, New York County (Bernard Nadel, J.), denying defendant's motion for partial summary judgment, unanimously reversed, on the law, the motion is granted and the second cause of action seeking punitive damages is dismissed, without costs. Plaintiffs, insured by defendant, submitted claims for water damage to their downstairs ceiling when the shower base of their upstairs bathroom cracked. Defendant refused to pay, asserting that the crack was a structural problem related to the settling of the house. Plaintiff's suit seeks both actual damages in the amount of $1,950 and punitive damages of $250,000, alleging that defendant's refusal to pay was a malicious, willful and improper act based on pure malice and bad faith. Special Term refused to dismiss this cause of action seeking punitive damages, finding an issue of fact as to whether defendant acted with "that gross bad faith in the processing of the claim [which] may warrant the award of punitive damages (see Gordon v. Nation-wide Mutual Insurance Co. 30 N.Y.2d 427)." We disagree. Plaintiffs have made no showing of fraudulent, criminal or dishonest acts by the insurer concerning or affecting the general public so as to warrant a recovery of punitive or exemplary damages ( Halpin v Prudential Ins. Co., 48 N.Y.2d 906; Royal Globe Ins. Co. v Chock Full O'Nuts Corp., 86 A.D.2d 315; Cohen v New York Prop. Ins. Underwriting Assn., 65 A.D.2d 71; Holoness Realty Corp. v New York Prop. Ins. Underwriting Assn., 75 A.D.2d 569). Clearly, the action is founded upon a private breach of contract and does not allege a fraudulent and deceitful scheme in dealing with the general public so as to imply a criminal indifference to civil obligations. Moreover, it is well settled that a claim for punitive damages may not be interposed as a separate cause of action (see Carroll v New York Prop. Ins. Underwriting Assn., 88 A.D.2d 527; APS Food Systems v Ward Foods, 70 A.D.2d 483).
Concur — Ross, J.P., Carro, Asch, Milonas and Kassal, JJ.