Lucariello v. Clayton D. Masonry Contracting, Inc.

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred by not dismissing plaintiffs cause of action for intentional tort, as well as plaintiffs claim for punitive damages. Plaintiffs complaint alleging breach of contract does not allege a breach of a duty separate and distinct from the breach of contract; therefore, the cause of action in tort should be dismissed (Charles v Onondaga Community Coll., 69 AD2d 144 , 148, appeal dismissed 48 NY2d 650 ; see also, Wegman v Dairylea Coop., 50 AD2d 108 , 112, lv dismissed 38 NY2d 918 ). Further, plaintiffs claim for punitive damages should be dismissed because punitive damages cannot be recovered in an action for breach of contract (Carney v Memorial Hosp. & Nursing Home, 101 AD2d 990 , 991, mod on other grounds 64 NY2d 770 ; Charles v Onondaga Community Coll., supra, p 149 ). (Appeal from order of Supreme Court, Erie County, Mintz, J.—summary judgment.) Present—Hancock, Jr., J. P., Callahan, Doerr, Pine and Schnepp, JJ.