
    Stanley Diamond, Respondent, v. Mutual Life Insurance Company of New York, Appellant.
    Supreme Court, Appellate Term, First Department,
    March 19, 1974.
    
      Samuel C. Cantor (Jerry A. Marr of counsel), for appellant. Walter, Conston, Schurtman $ Gumpel, P. C. (Bernard R. Diamond of counsel), for respondent.
   Per Curiam.

The right of plaintiff to recover punitive damages and counsel fees is not established by the allegations that the breaches by defendant of its obligations under the hospital indemnity policy of insurance were committed 1 ‘ willfully and without justification ” (see Walker v. Sheldon, 10 N Y 2d 401; Buttignol Constr. Co. v. Allstate Ins. Co., 22 A D 2d 689, affd. 17 N Y 2d 476; Kronish, Lieb, Shainswit, Weiner & Hellman v. Reynolds, 33 A D 2d 366).

Order reversed with $10 costs, and the motion to dismiss the third cause of action is granted.

Markowitz, P. J.

(dissenting). I agree that the third cause of action as presently pleaded does not justify granting plaintiff punitive damages. I also agree that plaintiff is not entitled to counsel fees as an element of damages in the pending action. In my view, however, plaintiff should be afforded the right, if he should be so advised and if this is so, to amend the complaint to allege facts indicating that the wrong complained of was morally culpable or was actuated by evil and reprehensible motives (Walker v. Sheldon, 10 N Y 2d 401, 404-405; Faulk v. Aware, Inc., 19 A D 2d 464, 471, affd. 14 N Y 2d 899).

I accordingly dissent to the extent indicated and vote to grant plaintiff the right to amend his complaint on the issue of punitive damages within 10 days after service of a copy of the order entered hereon with notice of entry.

Fine and Dudley, JJ., concur in Per Curiam opinion; Markowitz, P. J., dissents in part in memorandum.

Order reversed and dismissal granted.  