Bristol Harbour Associates, L.P. v. Home Insurance

244 A.D.2d 885, 665 N.Y.S.2d 142, 1997 N.Y. App. Div. LEXIS 12215

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinions

—Order affirmed without costs. Memorandum: Supreme Court properly granted plaintiffs’ cross motion to serve an amended complaint (see, CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959). Contrary to defendant’s contention, plaintiffs did not seek to add a separate cause of action alleging a violation of Insurance Law § 2601 but, rather, sought to amplify their cause of action for breach of contract with allegations of such a violation (see, New York Univ. v Continental Ins. Co., 87 NY2d 308, 317-318). Further, the court did not abuse its discretion in permitting plaintiffs to assert a cause of action pursuant to General Business Law § 349 (see, Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25-26). In opposing the motion, defendant’s only assertion of prejudice was based upon the new demand for punitive damages. Plaintiffs, however, seek punitive damages only “as provided for by General Business Law § 349 (h).” Pursuant to that section, the court may in its discretion award treble damages based upon proof of defendant’s willful or knowing violation of the statute, but the award of damages may not exceed $1,000 (see, General Business Law § 349 [h]; Hart v Moore, 155 Misc 2d 203, 207).

Further, the court did not abuse its discretion in denying defendant’s motion to strike certain allegations from the initial complaint (see, CPLR 3024 [b]); those allegations are relevant to the causes of action in the amended complaint.

All concur except Lawton, J. P., who dissents and votes to reverse in the following Memorandum: