North American Co. for Life & Health Insurance v. Pennington

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiffs motion for summary judgment for commissions paid in excess of those provided by the written agreement between the parties and to dismiss defendant’s third counterclaim should have been granted. The written agreement specifically stated that it could be modified only by a writing signed by a company officer, and defendant failed to set forth any facts establishing an exception to the requirement of General Obligations Law § 15-301 (1) that an agreement containing such a clause cannot be changed orally. Defendant has not shown any partial performance unequivocally referable to the alleged oral modification or any significant and substantial reliance thereon (see, Rose v Spa Realty Assocs., 42 NY2d 338, 341, 343-344; Cliffs Mgt. Corp. v Great E. Mgt. Corp., 85 AD2d 584, 585, appeal dismissed 56 NY2d 643). Defendant’s third counterclaim seeking punitive damages fails to state a cause of action because defendant has not alleged that plaintiffs acts have caused him damage. Absent a claim of compensatory damage, defendant may not recover punitive damages (see, Anderson v WHEC-TV, 92 AD2d 747, 748; 36 NY Jur 2d, Damages, § 174). (Appeal from order of Supreme Court, Erie County, Fudeman, J. — summary judgment.) Present — Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.