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DIAMOND v. MUT. LIFE INS. CO. OF N.Y.

77 Misc.2d 528 (1974)

Stanley Diamond, Respondent, v. Mutual Life Insurance Company of New York, Appellant.

Supreme Court, Appellate Term, First Department.

March 19, 1974

Attorney(s) appearing for the Case

Samuel C. Cantor (Jerry A. Marr of counsel), for appellant. Walter, Conston, Schurtman & Gumpel, P. C. (Bernard R. Diamond of counsel), for respondent.

FINE and DUDLEY, JJ., concur in Per Curiam opinion; MARKOWITZ, P. J., dissents in part in memorandum.

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 "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. ...

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