SCHONDORF v. BROOKVILLE ENERGY PARTNERS

ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff punitive damages in the principal sum of $375,000; as so modified, the judgment is affirmed, with costs to the appellant.

Contrary to the appellant's contention, the jury's finding of fraud in favor of the plaintiff and against him and the award of compensatory damages were not against the weight of the evidence (see Nicastro v. Park, 113 A.D.2d 129). The evidence supports the jury determination that the appellant fraudulently induced the plaintiff into investing in Brookville Energy Partners, L.P., and then used the plaintiff's money to fund another enterprise.

However, the award of punitive damages is not supported by sufficient evidence as a matter of law and must be dismissed (see James v. Powell, 19 N.Y.2d 249, 260). The plaintiff failed to establish that the appellant's conduct was so gross, wanton, or willful, or of such high moral culpability, as to justify an award of punitive damages (see Borkowski v. Borkowski, 39 N.Y.2d 982; Schneer v. Bellantoni, 250 A.D.2d 666).

The appellant's argument regarding the plaintiff's purported settlement with the defendant Keith Ganzer concerns matter dehors the record and will not be considered (see Tornheim v. Tornheim, 297 A.D.2d 341).

The appellant's remaining contentions are without merit.

PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur.