H & R Hats & Novelties, Inc. v. Citibank, N. A.

— Order of the Supreme Court, New York County (Arnold Guy Fraiman, J.), entered April 28, 1983, which denied the motion of defendant Graham & James, Esqs., to dismiss the amended complaint for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7) is unanimously modified, on the law and without costs, to strike the demand for punitive damages from the prayer for relief, and is otherwise affirmed. H Special Term, in treating the motion of the defendant Graham & James, Esqs., as a motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss for failure to state a cause of action, correctly determined that the allegations of the complaint are deemed to be true for purposes of such motion. That being the case, it is clear that the amended complaint states a cause of action against Graham & James. CFoley v D’Agostino, 21 AD2d 60; Sanders v Winship, 57 NY2d 391; Morone v Morone, 50 NY2d 481.) However, there is nothing alleged in this complaint that would justify an award of punitive damages. 11 Punitive damages ordinarily may be awarded only “in cases where the wrong complained of is morally culpable, or is actuated by evil or reprehensible motives, hot only to punish the defendant, but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future.” (Walker v Sheldon, 10 NY2d 401, 404.) Moreover, punitive damages generally are not recoverable where the alleged wrong was a private wrong as opposed to one aimed at the public generally (Garrity v Lyle Stuart, Inc., 40 NY2d 354). None of these circumstances is here present. Therefore, the demand for such damages should be stricken. Concur — Ross, J. P., Fein, Lynch, Milonas and Alexander, JJ.