Nutri Cheese Foods v. M. Slavin Sons

Full title: NUTRI CHEESE FOODS, INC., Appellant, v. M. SLAVIN SONS, LTD., Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 16, 1992

184 A.D.2d 330 (N.Y. App. Div. 1992)

584 N.Y.S.2d 575

Opinion

June 16, 1992

Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).

Plaintiff's motion to amend the ad damnum clause to add a claim for punitive damages, made five years after commencement of the action in Civil Court, was properly denied (cf., Norman v Ferrara, 107 A.D.2d 739; see also, 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.23). Punitive damages will not lie in an action for a mere breach of contract (Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 358), nor can they be supported by subsequent allegations based upon events that occurred after the underlying transaction (cf., Levine v. Abergel, 127 A.D.2d 822, 824-825).

Concur — Sullivan, J.P., Carro, Kassal and Smith, JJ.