O'Connor v. Lempicky ( 1981 )

— In an action, inter alia, to set aside a deed to real property and for partition, defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County, entered November 2, 1979, which, after a nonjury trial, inter alia, (1) canceled the deed in question, (2) awarded plaintiff compensatory damages consisting of out-of-pocket disbursements of $1,308.38, and reasonable attorney’s fees, and (3) awarded plaintiff punitive damages of $7,500. Interlocutory judgment modified, on the law, by deleting the third decretal paragraph, which awarded plaintiff punitive damages, and substituting a provision dismissing plaintiff’s claim for punitive damages. As so modified, interlocutory judgment affirmed, with costs to plaintiff. While a separate cause of action for punitive damages cannot stand alone (see Santos v Security & Law Enforcement Employees, 80 AD2d 554; Yates v Chrysler Corp., 79 AD2d 656), the court may consider an award where, in its discretion, the proof would merit such relief. Under the facts at bar, the trial court erred in awarding punitive damages in that the record, taken as a whole, fails to demonstrate that the defendant exhibited that high degree of moral turpitude which would justify the award of such damages (see Luxonomy Cars v Citibank, N.A., 65 AD2d 549). Mollen, P. J., Cohalan, Hargett and O’Connor, JJ., concur.