Hobush v. Consolidated Rail Corp.

—Harvey, J.

Appeal from an order of the Supreme Court at Special Term (Bradley, J.), entered February 7, 1985 in Ulster County, which denied defendant’s motion to dismiss plaintiff’s second cause of action.

In April 1984, plaintiff was injured when his automobile collided with a locomotive owned and operated by defendant. Plaintiff subsequently commenced this lawsuit seeking compensatory damages for personal injuries and property damage suffered in the accident. Plaintiff also asserted, as a separate cause of action, a claim for punitive damages. Defendant’s motion to dismiss the separate cause of action for punitive damages was denied. This appeal ensued.

It is well established that punitive damages may not be sought in a separate cause of action (Collision Plan Unlimited v Bankers Trust Co., 63 NY2d 827, 831). Here, however, plaintiffs underlying cause of action for compensatory damages has not been dismissed (cf. Ferrucci v State of New York, 42 AD2d 359, 362, affd 34 NY2d 881). Therefore, we construe the allegations contained in that part of the complaint denoted as a second cause of action to be part of plaintiffs first cause of action (see generally, Siegel, NY Prac § 208, at 245-246).

Order modified, on the law, without costs, by striking from the complaint the caption entitled "as and for a second cause of action” and paragraph nine, and, as so modified, affirmed. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.