Durgin v. State Farm Insurance

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of defendants’ motion for summary judgment dismissing the cause of action for rescission of the settlement based upon mutual mistake (see, Mangini v Mc-Clurg, 24 NY2d 556, 564; Carola v NKO Contr. Corp., 205 AD2d 931, 932; see also, Pokora v Albergo, 130 AD2d 473). The court erred, however, in denying that part of defendants’ motion for summary judgment dismissing the cause of action for fraud and the claim for punitive damages. The extent of plaintiffs injuries was not known at the time of settlement, and there is no showing that the settlement was fraudulently induced (see generally, Matthews v Schusheim, 42 AD2d 217, 221, affd 35 NY2d 686, rearg denied 36 NY2d 713; Martin v Martin, 74 AD2d 419, 424). Because plaintiffs claim for punitive damages is based upon the cause of action for fraud, it also should have been dismissed. We therefore modify the order by granting in part defendants’ motion for summary judgment and dismissing the cause of action for fraud and the claim for punitive damages. (Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J.— Summary Judgment.) Present — Pine, J. P., Lawton, Wisner, Callahan and Boehm, JJ.