Fragrancenet.com, Inc. v Fragrancex.com, Inc.

Fragrancenet.com, Inc. v Fragrancex.com, Inc. 2009 NY Slip Op 09613 [68 AD3d 1051] December 22, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Fragrancenet.com, Inc., Appellant,
v
Fragrancex.com, Inc., et al., Respondents.

—[*1] Miller, Apfel & Curran, PLLC, Hauppauge, N.Y. (James P. Curran of counsel), for appellant.

Anthony M. Camisa, Mineola, N.Y. (Cameron Gilbert and Eric S. Crusius of counsel), for respondents.

In an action, inter alia, to recover damages for conversion, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Weber, J.), dated February 25, 2009, as, in effect, upon renewal, vacated so much of a prior order of the same court dated July 3, 2008, as denied that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the plaintiff's claim for punitive damages, and thereupon granted that branch of the motion.

Ordered that the order is affirmed insofar as appealed from, with costs.

Affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]), in effect, upon renewal, the Supreme Court properly, inter alia, granted that branch of the defendants' motion pursuant to CPLR 3211 (a) (7) which was to dismiss the plaintiff's claim for punitive damages.

"Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but 'evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations' " (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007], quoting Walker v Sheldon, 10 NY2d 401, 405 [1961]; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993]; Sharapata v Town of Islip, 56 NY2d 332, 335 [1982]). Here, the allegations in the complaint do not support the imposition of punitive damages.

The plaintiff's remaining contentions are without merit.

We decline the defendants' request to impose sanctions upon the plaintiff (see 22 NYCRR 130-1.1; Matter of Tiberie v Roelofsen, 63 AD3d 851, 852 [2009]). Dillon, J.P., Santucci, Florio and Hall, JJ., concur.