Summary
stating that "punitive damages may not be sought as a separate cause of action."
Summary of this case from Koch v. PechotaOpinion
Decided October 19, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES H. SHAW, JR., J.
Robert J. Dinerstein for appellant.
Doris G. Traub for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Plaintiff's first cause of action failed to allege either the elements of scienter or deceit, each essential to a cause of action for fraud (24 N.Y. Jur, Fraud and Deceit, § 140). Insufficient too, is the plaintiff's second cause of action since the oral agreement on which it was based contravened the requirement that a contract to perform services for a medical facility which has been issued an operating certificate or certificate of approval be in writing (10 N.Y.CRR 400.4 [a] [1]; see Tooker v Inter-County Tit. Guar. Mtge. Co., 295 N.Y. 386). Finally, as to the third cause of action, punitive damages may not be sought as a separate cause of action (see Trans-State Hay Feed Corp. v Faberge, Inc., 42 A.D.2d 535, affd 35 N.Y.2d 669).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
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.