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Breach of Contract Allegations Did Not Give Rise to Tort Causes of Action—No Duty Independent of the Contract Itself

The First Department determined that the negligence causes of action were subsumed in the breach of contract allegations and could not be separately pled:

Breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated … . Allegations of negligence based on defects in construction of a condominium sound in breach of contract rather than tort … . A claim for negligent misrepresentation is not separate from a breach of contract claim where the plaintiff fails to allege a breach of any duty independent from contractual obligations … . Here, plaintiff failed to allege any legal duty that would give rise to an independent tort cause of action. Neither General Business Law art 23-A nor its regulations create a special duty or support a private right of action. Thus, the negligence and negligent misrepresentation claims were duplicative of the breach of contract claim and did not state a cause of action. Board of Mgrs of Soho N 267 W 124th St Condominium v NW 124 LLC, 2014 NY Slip Op 02513, 1st Dept 4-10-14

 

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