Opinion
Decided September 14, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, FRANK J. BLANGIARDO, J.
Cameron K. Wehringer, appellant pro se. Seymour J. Ugelow for respondent.
MEMORANDUM.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), the order of the Appellate Division should be affirmed, with costs.
The complaint alleges no relationship, contractual or otherwise, giving rise to a duty on the part of the defendant, breach of which could furnish a basis for tort liability (see Albemarle Theatre v Bayberry Realty Corp., 27 A.D.2d 172, 176; cf. North Shore Bottling Co. v Schmidt Sons, 22 N.Y.2d 171, 179), nor does it allege that the insurance policy issued to plaintiff did not permit a premium increase for issuance of a separate policy to plaintiff's ex-wife (cf. Sciasscia v Fredburn Constr. Corp., 248 App. Div. 608; Ippisch v Moricz-Smith, 1 Misc.2d 120, 124, revd on other grounds 1 A.D.2d 968). A threat to do what one has a legal right to do is not actionable ( 30 East End v World Steel Prods. Corp., 110 N.Y.S.2d 754). Moreover, absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty (see Marvex Processing Finishing Corp. v Allendale Mut. Ins. Co., 91 Misc.2d 683, affd 60 A.D.2d 800; Grimm v Bam, 22 Misc.2d 982; PJI 2:284).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, in a memorandum.