NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
September 29, 2009
235 E.4TH STREET, LLC, PLAINTIFF-RESPONDENT.
DIME SAVINGS BANK OF WILLIAMSBURGH, DEFENDANT-APPELLANT.
Order, Supreme Court, New York County (Carol Edmead, J.), entered July 21, 2008, which, insofar as appealed from, denied defendant's motion to dismiss plaintiff's cause of action for breach of contract and demand for punitive damages, unanimously modified, on the law, to strike the demand for punitive damages, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Richter, JJ.
The motion court correctly held that a cause of action for breach of contract is stated by plaintiff mortgagor's allegations that defendant mortgagee's payoff letter demanded a prepayment penalty that was not called for in the mortgage, and that plaintiff's payment of the demanded penalty under constraint of closing the transaction was not an acceptance of what was a modification of the mortgage. Plaintiff's demand for punitive damages, however, should have been stricken since its alleged damages arose from a breach of contract and there is no allegation of tortious conduct and no evidence of any egregious or morally reprehensible conduct (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 315-316 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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