Lucariello v. Clayton D. Masonry Contracting, Inc.

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred by not dismissing plaintiffs cause of action for intentional tort, as well as plaintiffs claim for punitive damages. Plaintiffs complaint alleging breach of contract does not allege a breach of a duty separate and distinct from the breach of contract; therefore, the cause of action in tort should be dismissed (Charles v Onondaga Community Coll., 69 AD2d 144, 148, appeal dismissed 48 NY2d 650; see also, Wegman v Dairylea Coop., 50 AD2d 108, 112, lv dismissed 38 NY2d 918). Further, plaintiffs claim for punitive damages should be dismissed because punitive damages cannot be recovered in an action for breach of contract (Carney v Memorial Hosp. & Nursing Home, 101 AD2d 990, 991, mod on other grounds 64 NY2d 770; Charles v Onondaga Community Coll., supra, p 149). (Appeal from order of Supreme Court, Erie County, Mintz, J.—summary judgment.) Present—Hancock, Jr., J. P., Callahan, Doerr, Pine and Schnepp, JJ.