| 235 E. 4th St., LLC v Dime Sav. Bank of Williamsburgh |
| 2009 NY Slip Op 06729 [65 AD3d 976] |
| September 29, 2009 |
| Appellate Division, First Department |
| 235 E. 4th Street, LLC, Respondent, v Dime Savings Bankof Williamsburgh, Appellant. |
—[*1] Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow, LLP, New York (Steven D. Karlin ofcounsel), for respondent.
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 forbreach of contract and demand for punitive damages, unanimously modified, on the law, to strikethe demand for punitive damages, and otherwise affirmed, without costs.
The motion court correctly held that a cause of action for breach of contract is stated byplaintiff mortgagor's allegations that defendant mortgagee's payoff letter demanded a prepaymentpenalty that was not called for in the mortgage, and that plaintiff's payment of the demandedpenalty under constraint of closing the transaction was not an acceptance of what was amodification of the mortgage. Plaintiff's demand for punitive damages, however, should havebeen stricken since its alleged damages arose from a breach of contract and there is no allegationof tortious conduct and no evidence of any egregious or morally reprehensible conduct (seeNew York Univ. v Continental Ins. Co., 87 NY2d 308, 315-316 [1995]).Concur—Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Richter, JJ. [See 2008NY Slip Op 32027 (U).]