outside of the breach of contract duties or context. As such, under New
York law, Trepel has not properly alleged fraud.
Further, under New York law, emotional distress is "not redressable
under a business fraud theory of liability." Citicorp Int'l Trading v.
Western Oil & Refining Co., 790 F. Supp. 428, 436 (S.D.N.Y. 1992)
(dismissing claim for emotional distress damages stemming from fraudulent
misrepresentation in business transaction) (citations omitted). Here, the
exemplary damages are sought on the basis of Abdoulaye's conduct as a
buyer in a commercial transaction. On that basis, a court applying New
York law could not award Trepel exemplary damages.
Likewise, under New York law, punitive damages are not available in the
ordinary fraud and deceit case; a plaintiff must plead that defendant's
conduct was morally culpable. See Lovely Peoples Fashion, Inc. v. Manna
Fabrics, No. 95 Civ. 8450, 1998 WL 422482, *8-*9 (S.D.N.Y. July 22, 1998)
(citations omitted). Failure to pay the scientific testing charges
pursuant to an alleged contract, by itself, is not so "`eggregious' nor
`gross and morally reprehensible,' as these terms are generally
understood in the context of punitive damage awards." Id. at *9.
Without a proper claim for fraud, the total amount in controversy,
therefore, is reduced by $50,000. Thus, the Court's initial review of the
complaint reveals that Trepel's claims fail to satisfy the amount in
controversy requirement under 28 U.S.C. § 1332, and, that the Court
lacks subject matter jurisdiction. Accordingly, it is hereby
ORDERED that the complaint be dismissed with leave to amend; and it is
ORDERED that the case be dismissed with prejudice should Martin Trepel
fail to amend the complaint by March 1, 2002; and it is finally
ORDERED that the Clerk of Court close this case.
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