City of Niagara Falls v. Hartford Fire Insurance

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erroneously denied The Hartford Fire Insurance Company’s cross motion for summary judgment dismissing the city’s third cause of action seeking punitive damages and attorney’s fees for Hartford’s disclaimer of coverage for damage to the interior of the city’s library building caused by a storm on June 21, 1981. Punitive damages are not recoverable for a private breach of contract where a public right is not sought to be vindicated or morally culpable conduct deterred. The allegations of bad faith and a reckless disregard for the rights of the city are insufficient to support an award of punitive damages and attorney’s fees (see, Uniland Dev. Co. v Home Ins. Co., 97 AD2d 973; Reifenstein v Allstate Ins. Co., 92 AD2d 715; Bruno v Home Mut. Ins. Co. 91 AD2d 1169).

The grant of summary judgment to the city on the issue of Hartford’s liability under its insurance policies must be affirmed. In our view, in opposing the motion for summary judgment, Hartford failed to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action” (Zuckerman v City of New York, 49 NY2d 557, 560). The report of S. Rottenberg, an engineer retained by Hartford, which was annexed to the opposing affidavit by Hartford’s attorney, indicates that the water damage to the interior of the building occurred prior to the wind damage, and was thus a loss excluded under the provisions of the policies. The report, however, must be classified as inadmissible hearsay and was insufficient to defeat the city’s motion (see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965; Heath v Soloff Constr., 107 AD2d 507, 511; Ferguson v Temmons, 79 AD2d 1090). (Appeal from order of Supreme Court, Niagara County, Kuszynski, J.—partial summary judgment.) Present— Callahan, J. P., Doerr, Boomer, Pine and Schnepp, JJ.