Merrick v. Four Star Stage Lighting, Inc.
| Citation | 400 N.Y.S.2d 543,60 A.D.2d 806 |
| Parties | David MERRICK, Plaintiff-Respondent, v. FOUR STAR STAGE LIGHTING, INC., et al., Defendants-Appellants. |
| Decision Date | 05 January 1978 |
| Court | New York Supreme Court — Appellate Division |
H. J. Sherman, New York City, for plaintiff-respondent.
P. R. Forlenza, New York City, for defendants-appellants.
Before LUPIANO, J. P., and BIRNS, SILVERMAN and EVANS, JJ.
Order, Supreme Court, New York County, entered on August 3, 1977, denying defendants' motion for summary judgment to dismiss plaintiffs' causes of action for lost profits, the profits secured by defendants during the period of the alleged conversion and punitive damages is unanimously modified on the law without costs and without disbursements to strike paragraphs 7 and 11 of the complaint which refer to punitive damages, and is otherwise affirmed. The parties are directed to apply to the Administrative Judge for assignment of this case to one judge for all purposes. The parties may then apply to that judge, if so advised, for appropriate relief including all disclosure proceedings and a prior trial on the issue of liability.
Plaintiff here sets forth four causes of action for (a) replevin (which was not made a part of the summary judgment motion); (b) damages for conversion (c) damages for loss of use and rental value of the property; (d) punitive damages.
The Court of Appeals in Garrity v. Lyle Stuart, 40 N.Y.2d 354, 358, 386 N.Y.S.2d 831, 833, 353 N.E.2d 793, 795, restated the general principle that "It has always been held that punitive damages are not available for mere breach of contract, for in such a case only a private wrong, and not a public right, is involved." There has been no showing that the wrongdoing was of a continuous and systematic nature, and aimed at the public generally. Punitive damages are allowed where the wrong is aggravated by evil motives, in order to punish the wrongdoer for his misconduct and furnish a wholesome example (Krug v. Pitass, 162 N.Y. 154, 56 N.E. 526).
This lawsuit between the parties, has a varied and acrimonious history, having been before this Court on two prior occasions. It was before us when Merrick sought seizure of the lighting equipment in issue (50 A.D.2d 335, 378 N.Y.S.2d 65), and it was before us again when this Court stayed defendants' action against Merrick for abuse of process, libel, etc (56 A.D.2d 767, 392 N.Y.S.2d 297).
In view of the convoluted course this lawsuit has followed, and...
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