Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint in this action alleging defendant's bad faith in refusing to settle the underlying tort action within the policy limits. It is undisputed that plaintiffs have been paid the full amount of the compensatory damages awarded to them in the underlying tort action. They are not entitled, as assignees of the insured and the operator of the insured's motor vehicle, to recover from defendant the unpaid punitive damages award assessed against the operator in the underlying tort action because "`[t]he record is devoid of any evidence that the insurer acted with malice or intent to harm the insured'" (DiBlasi v. Aetna Life Cas. Ins. Co., 147 A.D.2d 93, 100, quoting Kulak v. Nationwide Mut. Ins. Co., 47 A.D.2d 418, 421, revd on other grounds 40 N.Y.2d 140; see also, Reifenstein v. Allstate Ins. Co., 92 A.D.2d 715, 716-717; Catalogue Serv. v Insurance Co., 74 A.D.2d 837, 838).
Furthermore, plaintiffs are not entitled to recover the unpaid punitive damages award because punitive damages are not insurable, and therefore could not have been within the contemplation of the parties at the time the contract for automobile liability insurance was made (see, Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 400; see also, Kenford Co. v County of Erie, 73 N.Y.2d 312, 319-322).
In view of our determination, we do not address the remaining contention advanced by defendant.