| AXA Mediterranean Holding, S.P. v ING Ins. Intl.,B.V. |
| 2013 NY Slip Op 03386 [106 AD3d 457] |
| May 9, 2013 |
| Appellate Division, First Department |
| AXA Mediterranean Holding, S.P.,Appellant, v ING Insurance International, B.V.,Respondent. |
—[*1] Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Daniel J. Toal ofcounsel), for respondent.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or aboutFebruary 22, 2012, which, to the extent appealed from, granted defendant's motion todismiss the cause of action for breach of contract related to labor organizing activity andthe request for punitive damages, unanimously affirmed, with costs.
Pursuant to section 13.1 of the parties' stock purchase agreement, all claims forbreach of representation and warranty expire after one year of closing on the sale, unlessplaintiff provides defendant with a notice of claim "satisfying the content of Section 11.2(a)," which requires that a notice of claim set forth the existence of a claim and, ifpossible, the facts underlying the claim. Plaintiff's July 17, 2009 notice of claim wastimely but did not allege a breach of the labor organizing representation and warrantycontained in section 2.14 (b) of the agreement; it alleged only a breach of certainemployment-related representations contained in section 2.14 (d). Plaintiff having failedto provide defendant with a timely notice of its claim under section 2.14 (b), the claimexpired.
Section 11.1 (a) (5) of the stock purchase agreement prohibits claims for punitivedamages (other than any such damages payable pursuant to a third-party claim). Contraryto plaintiff's contention, while section 11.1 (a) exempts claims involving allegations offraud or intentional or willful misconduct from the limitations therein, it does notoverride this prohibition. Nothing in section 11.1 (a) suggests that the parties agreed topermit a punitive damages request in connection with a breach of contractclaim—even if such an agreement were valid (see Garrity v Lyle Stuart,Inc., 40 NY2d 354, 360 [1976] ["The freedom of contract does not embrace thefreedom to punish, even by contract"]). In any event, punitive damages are notrecoverable because defendant's alleged conduct is not actionable as a tort independentof its alleged failure to perform its contractual obligations (see New York Univ. vContinental Ins. Co., 87 NY2d 308, 315-316 [1995]). The mere allegation that thealleged breach of contract was "maliciously intended" or constituted "willful misconduct"does not render the breach of contract claim a separate and independent tort claim (see OFSI Fund II, LLC v CanadianImperial Bank of Commerce, 82 AD3d 537, 539 [1st Dept 2011], lvdenied 17 NY3d 702 [2011]).[*2]
We have considered plaintiff's remainingarguments and find them unavailing. Concur—Gonzalez, P.J., Tom, Sweeny,Renwick and Richter, JJ.