November 14, 1977
Appeal from the Civil Court of the City of New York, Queens County, HERBERT A. POSNER, J.
Weintraub Fass (Harry Fass and Joseph P. Axler of counsel), for appellant.
Richard Creditor for respondent.
Judgment unanimously modified by deleting therefrom the award for punitive damages; and, as so modified, judgment affirmed, without costs.
The complaint herein merely alleges that defendant refused to pay under the terms of a policy issued to the plaintiff after due demand therefor was made. It is the opinion of this court that there can be no recovery for punitive damages herein (M.S.R. Assoc. v Consolidated Mut. Ins. Co., 58 A.D.2d 858; see, also, Garrity v Lyle Stuart, Inc., 40 N.Y.2d 354, 358; Dembar v Reynolds Co., 40 Misc.2d 84). While the conduct of the carrier herein is not to be condoned, its punishment is more properly within the province and jurisdiction of the State Superintendent of Insurance (see Insurance Law, §§ 5, 40-d, 274).
Concur: PINO, P.J., RINALDI and BUSCHMANN, JJ.