independent duty is breached."); Luxonomy Cars, Inc. v. Citibank.
N.A., 65 A.D.2d 549, 550, 408 N.Y.S.2d 951, 954 (2d Dep't 1978)
("Abstractly, a tort may accompany a breach of contract, but only
where the contract creates a relation out of which springs a
duty, independent of the contract obligation, and that
independent duty is also violated.") (citations omitted).
Moreover, New York law recognizes no cause of action for
negligent breach of contract. Megaris Furs. Inc. v. Gimbel Bros.,
Inc., 172 A.D.2d 209, 211, 568 N.Y.S.2d 581, 583 (1st Dep't 1991)
("Plaintiffs' second cause of action alleges negligent
performance of the contract, a cause of action which simply does
The plaintiff's assertion of "gross negligence" does not affect
the application of these principles. The difference between
"negligence" and "gross negligence" is one of fact, not law, Food
Pageant Inc. v. Consolidated Edison Co., 54 N.Y.2d 167. 173
(1981), and plaintiff alleges no facts to sustain a cause of
action for gross negligence. "Gross negligence . . . is conduct
that evinces a reckless disregard for the rights of others or
`smacks' of intentional wrongdoing." Colnaghi U.S.A., Ltd. v.
Jewelers Protection Servs. Ltd., 81 N.Y.2d 821, 823-24 (1993).
Plaintiff also alleges, albeit by nothing more than a
rhetorical flourish, that Chase was "reckless." Complaint at
¶ 56. Under New York law "[r]ecklessness is more than
ordinary negligence, more than want of ordinary care." Sheridan
v. Fletcher, 270 A.D. 29, 32, 58 N.Y.S.2d 466, 469 (3d Dep't
1945). Indeed, the word "implies a substantially greater degree
or grosser form of negligence . . . desperately heedless, as from
folly, passion or perversity, impetuosity or rashly adventurous."
Id. Once again, a cause of action based on harm suffered due to
reckless conduct must be supported by specific and particular
allegations of extreme wrongdoing. of course, no such allegations
have been made here. A cause of action for breach of contract has
been maintained. In the absence of factual allegations showing
more, heated language and indignation will not suffice to
bootstrap that cause of action into a cause of action for
negligence, gross negligence, or recklessness. Accordingly, the
plaintiff's purported causes of action based on these theories of
liability are dismissed.
8. Attorney's Fees
The plaintiff has interposed a claim for attorney's fees, based
on Chase's alleged "wrongdoing and illegal conduct." Complaint at
¶ 58. The claim appears unsupported by any substantive legal
theory of recovery, and therefore, cannot be maintained. See
Nwachukwu v. Chemical Bank, supra, 1997 WL 441941, at * 8
(dismissing claim for attorney's fees where plaintiff had "merely
state[d] a set of facts that could form the basis for a statutory
or common-law cause of action," but had otherwise stated no cause
More fundamentally, New York law is clear that "attorney's fees
are incidents of litigation and a prevailing party may not
collect them from the loser unless an award is authorized by
agreement between the parties, statute or court rule." Hooper
Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491 (1989).
This rule conforms to the universal American rule "not to allow a
litigant to recover damages for the amounts expended in the
successful prosecution or defense of its rights." Mighty Midgets,
Inc. v. Centennial Ins. Co., 47 N.Y.2d 12, 21-22 (1979). Since no
statute, rule, or agreement of the parties here provides
otherwise, plaintiff's purported cause of action for attorney's
fees has no merit, and must be dismissed.
9. Punitive Damages
Finally, plaintiff has claimed punitive damages. Complaint at
¶ 61(b). Once again, however, nothing in the Complaint
discloses either the factual predicates of the claim, or a legal
theory that might sustain it. Under New York law, punitive
damages "may not be awarded in breach of contract cases, which
involve a private wrong and where no public rights
Durham Indus., Inc. v. North River Ins. Co., 673 F.2d 37, 41 (2d
Cir.), cert. denied, 459 U.S. 827 (1982). Indeed, punitive
damages "are available only in those limited circumstances where
it is necessary to deter defendant and others like it from
engaging in conduct that may be characterized as `gross' and
`morally reprehensible,' and of `such wanton dishonesty as to
imply a criminal indifference to civil obligations.'" New York
Univ. v. Continental Ins. Co., 87 N.Y.2d at 315-16.
Courts have consistently held that punitive damages awards are
not appropriate on the type of claim asserted here against Chase
See e.g., Titan Air Conditioning Corp. v. Chase Manhattan Bank,
N.A., 61 A.D.2d 764, 765, 402 N.Y.S.2d 12, 14 (1st Dep't 1978)
(affirming dismissal of a claim for punitive damages based on
allegations that the bank paid checks bearing forged endorsements
even though there were factual issues as to whether the bank was
grossly negligent and acted in bad faith); Mansi v. Gaines,
216 A.D.2d 536, 538, 628 N.Y.S.2d 804, 806 (2d Dep't 1995) (award of
punitive damages against bank unsustainable on allegations that
bank honored checks bearing forged signatures); Singleton v.
Nat'l Bank of North America, 43 A.D.2d 857, 351 N.Y.S.2d 722 (2d
Dep't 1974) (alleged negligence by bank in honoring forged checks
drawn on plaintiff's checking account did not warrant recovery of
punitive damages). For this reason, together with the complete
absence of allegations that might otherwise sustain punitive
damages, the claim for punitive damages is dismissed.
For the reasons set forth in the foregoing, the defendant's
motions to dismiss the Complaint for lack of subject matter
jurisdiction, and for insufficiency of service of process are
denied, and the defendant's motion to dismiss all causes of
action except the claim for breach of contract for failure to
state a claim is granted. Accordingly this case shall proceed on
plaintiff's sole remaining claim for breach of contract.