Finally, punitive damages require pleading and proof of malice, willfulness, or other aggravating circumstances (14 NY Jur, Damages, §§ 179, 187). It cannot be said as a matter of law that punitive damages would be unavailable if the substantive cause of action for retaliation or harassment were proven (see, e.g., I.H.P. Corp. v 210 Cent. Park South Corp., 16 AD2d 461, affd 12 NY2d 329). Consequently, and without reaching the scandalous or prejudicial nature of these allegations, it cannot be said that they were unnecessarily inserted. Accordingly, they would not be subject to deletion pursuant to CPLR 3024 (subd [b]). (3 Weinstein-Korn-Miller, NY Civ Prac, par 3024.10.)
Nevertheless, there is no separate, substantive cause of action for punitive damages (Steinberg v Monasch, 85 AD2d 403, 406; M.S.R. Assoc. v Consolidated Mut. Ins. Co., 58 AD2d 858). They are only recoverable as an incident to recovery on the underlying cause of action (14 NY Jur, Damages, § 178). In view of the insufficiency of the third cause of action, the allegations supporting punitive damages also fall.
FRAUD
In his fourth cause of action plaintiff alleges that defendant falsely represented at the commencement of his tenancy that he would be permitted to reside in the loft. He says defendant knew the representations were false; plaintiff relied thereon by spending money to convert the space to residential use.