RESNICK TEXTILE CO INC v. THE DAISY GROUP LTD (2001)

Order, Supreme Court, New York County (Louis York, J.), entered on or about September 13, 2000, which, in an action arising out of plaintiff corporation's sale of goods to defendant corporation, insofar as appealed from, denied defendants' motion to dismiss, for failure to state a cause of action, plaintiffs' causes of action for fraud and intentional infliction of emotional distress, and to strike plaintiffs' demands thereunder for punitive damages, unanimously modified, on the law, to strike the demand for punitive damages under the fraud cause of action and to dismiss the cause of action for intentional infliction of emotional distress, and otherwise affirmed, without costs.

 Plaintiffs' allegations that defendants falsely represented that they would pay what was owed if plaintiffs shipped them another order of goods of a certain type, and thereafter falsely represented that they would pay what was owed if plaintiffs took back certain goods, while never having any intention of paying, state causes of action for fraud (see, Solstein Prods. v. Rabanne, 236 A.D.2d 216, 653 N.Y.S.2d 325). However, such allegations do not show conduct so wantonly dishonest and morally reprehensible as to warrant an award of punitive damages (see, Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 634 N.E.2d 940), and we accordingly modify to strike the demands therefor under the fraud causes of action.   Nor were the individual defendants' alleged failure to return the individual plaintiff's telephone calls and alleged repeated false promises of payment so extreme and outrageous as to support a cause of action for intentional infliction of emotional distress (see, Howell v. New York Post Co., 81 N.Y.2d 115, 121-122, 596 N.Y.S.2d 350, 612 N.E.2d 699), and we accordingly also modify to dismiss that cause of action.