GUARDIAN MORTGAGE ACCEPTANCE CORPORATION v. Arbor National Commercial Mortgage Corporation, Defendant. (1999)

Order, Supreme Court, New York County (Herman Cahn, J.), entered August 31, 1998, which, to the extent appealed from as limited by the briefs, denied the motion of defendant Bankers Trust for summary judgment, except as to punitive damages for breach of contract, and denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously modified, on the law, the motion of defendant Bankers Trust granted to the extent of striking plaintiff's demand for punitive damages in its entirety, and otherwise affirmed, without costs.

 Given the conflicting evidence in the record, the motion court correctly found material issues of fact as to whether plaintiff has standing to maintain this suit, and as to whether defendants' alleged misfeasance was a proximate cause of plaintiff's alleged injuries (see, Bachmann, Schwartz & Abramson v. Advance Intl., Inc., 251 A.D.2d 252, 675 N.Y.S.2d 531).

 However, plaintiff's demand for punitive damages from Bankers Trust should have been stricken in its entirety.   Punitive damages, although available for breach of fiduciary duty, are available only in instances where the fiduciary breach is shown to have entailed an outrageous public wrong (see, Banque Indosuez v. Barclays Bank PLC, 181 A.D.2d 447, 580 N.Y.S.2d 765).   After substantial discovery, “the record is devoid of evidence of malicious or reckless misconduct on the part of” defendant Bankers Trust (see, Cres Jewelry Factory, Inc. v. Good-Land Mgt. Corp., 240 A.D.2d 218, 658 N.Y.S.2d 876).   We have considered the remaining arguments of the parties for affirmative relief and find them unavailing.

MEMORANDUM DECISION.