William Keegan, Respondent, v. Lincoln Harkow, Appellant

William Keegan, Respondent, v Lincoln Harkow, Appellant. [MAJORITY] In an action, inter alia, to recover moneys due pursuant to a certain agreement, defendant appeals from an order of the Supreme Court, Queens County, dated November 20, 1975, which denied his motion, inter alia, to dismiss "each and every” cause of action of the complaint for failure to state a cause of action. Order modified, on the law, by adding thereto, immediately after the word "denied”, the following: "except as to the third cause of action, which is severed and dismissed on the ground that it fails to state a cause of action.” As so modified, order aflirmed, without costs or disbursements. Plaintiff, an attorney, alleges in his complaint an agreement with defendant, also an attorney, under which defendant was to "handle certain matters” of an estate in conjunction with plaintiff. The complaint also alleges that defendant has not paid plaintiff the agreed fee for his services. Therefore, plaintiff has alleged a valid cause of action in contract and the motion was properly denied as to the first and second causes of action of the complaint (see Foley v D’Agostino, 21 AD2d 60). However, as purely private contractual rights are involved, the third cause of action, which seeks punitive damages, should have been dismissed (see Van Valkenburgh, Nooger & Neville v Hayden Pub. Co., 33 AD2d 766, affd 30 NY2d 34). Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.