Weir Metro Ambu-Service, Inc. v. Turner

In an action to recover damages for misrepresentation and breach of contract, defendants appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated January 22,1981, which denied their motion to dismiss plaintiff’s complaint. Order reversed, on the law, with $50 costs and disbursements, the motion is granted and the complaint is dismissed. There are at least two separate and independently adequate grounds on which plaintiff’s first cause of action must be dismissed: (1) plaintiff has failed to state facts sufficient to show that as of the date of the commencement of the action damage had been sustained by it by reason of defendants’ acts (see *650Hellerman v Weinbrot, 276 App Div 763); and (2) plaintiff has failed to exhaust its administrative remedies before instituting this action (see Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371). Plaintiff’s second cause of action must be dismissed because it is based upon an alleged oral contract which contravenes the law of the State of New York (see Tooker v Inter-County Tit. Guar. & Mtge. Co., 295 NY 386). Plaintiff’s third cause of action for punitive damages is also defective and must be dismissed since plaintiff asserts such claim as an independent cause of action (see Fox v Issler, 77 AD2d 860). Gulotta, J. P., Thompson, Brown and Niehoff, JJ., concur.