Piduch v. Lumbermens Mutual Casualty Co.

Since the first amended complaint contains no allegation that defendant engaged in any conduct or transactions affecting the general public, the causes of action predicated upon a violation of Insurance Law § 40-d and the request for punitive damages and attorney’s fees should have been dismissed (see, Hubbell v Trans World Ins. Co., 50 NY2d 899, 901; Halpin v Prudential Ins. Co., 48 NY2d 906, 907-908; Uniland Dev. Co. v Home Ins. Co., 97 AD2d 973). The court also abused its discretion by allowing plaintiff to replead his claim for punitive damages and attorney’s fees. The proposed amendment merely speculates that defendant engaged in a general business practice, and plaintiff has failed to demonstrate by affidavit or otherwise that defendant engaged in any activities harmful to the general public. The court should have denied leave to replead the claim for punitive damages and attorney’s fees without prejudice to renewal upon proper papers (CPLR 3211 [e]; Young v Nelson, 23 AD2d 531). Accordingly, the order is modified by dismissing the second, fifth and sixth causes of action of the amended complaint and by denying, without prejudice, the cross motion to the extent it seeks leave to replead a claim for punitive damages and attorney’s fees. (Appeal from order of Supreme Court, Erie County, Kubiniec, J. — motion to dismiss.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.