KITCHEN ASSOCIATES INC v. TRAVELERS INSURANCE COMPANY (2004)

 Supreme Court erred in denying that part of defendant's motion for summary judgment dismissing the claim for punitive damages, and we therefore modify the order accordingly.   Where, as here, plaintiffs seek punitive damages in a breach of contract action, defendant's conduct must be actionable as an independent tort (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315-316, 639 N.Y.S.2d 283, 662 N.E.2d 763;  Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 634 N.E.2d 940).   We conclude that defendant established that there was no tort independent of the alleged breach of the insurance contract, and plaintiffs failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Contrary to plaintiffs' contention, defendant established as a matter of law that there was no independent tort of fraud.   The written terms of the insurance contract directly conflict with defendant's alleged misrepresentation, and thus plaintiffs cannot be said to have justifiably relied on the alleged misrepresentation (see Stone v. Schulz, 231 A.D.2d 707, 707-708, 647 N.Y.S.2d 822;  Matter of North Hills Off. Serv. v. Bevona, 222 A.D.2d 245, 635 N.Y.S.2d 16, lv. denied 87 N.Y.2d 810, 642 N.Y.S.2d 859, 665 N.E.2d 661;  Pinney v. Beckwith, 202 A.D.2d 767, 768-769, 608 N.Y.S.2d 738).

 Plaintiffs' contention that defendant committed a prima facie tort is asserted for the first time on appeal and therefore is not preserved for our review (see generally Killeen v. Crosson, 284 A.D.2d 926, 927, 726 N.Y.S.2d 198).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion with respect to the claim for punitive damages and dismissing that claim and as modified the order is affirmed without costs.

MEMORANDUM: