Empire State Federal Savings & Loan Ass'n v. Commercial Union Insurance , 412 N.Y.S.2d 180 ( 1979 )

— In an action, inter alia, to recover the proceeds of a fire insurance policy, defendant appeals from an order of the Supreme Court, Westchester County, dated May 5, 1978, which denied its motion to dismiss the second cause of action (for punitive damages) on the ground of legal insufficiency. Order reversed, on the law, with $50 costs and disbursements, and motion granted. Initially, it must be noted that a demand for punitive damages does not constitute a separate cause of action for pleading purposes (Knibbs v Wagner, 14 AD2d 987; Dworski v Empire Discount Corp., 46 Mise 2d 844). Of more significance for present purposes, however, is the fact that the complaint, as it now stands, is lacking any factual allegations setting forth that type of gross, wanton or willful fraud or other morally culpable conduct upon which punitive damages may be awarded (Borkowski v Borkowski, 39 NY2d 982; cf. Greenspan v Commercial Ins. Co. of Newark, N.J., 57 AD2d 387). Moreover, the record taken as a whole fails to demonstrate that the defendant in any way exhibited that high degree of moral turpitude which might justify the imposition of such damages (see Luxonomy Cars v Citibank, N.A., 65 AD2d 549). On the contrary, defendant’s answer is based upon allegations which, if proven, would constitute a valid defense (see M. S. R. Assoc, v Consolidated Mut. Ins. Co., 58 AD2d 858). Damiani, J. P., Titone, Suozzi and Shapiro, JJ., concur.