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A CAUSE OF ACTION FOR SUB-PAR PERFORMANCE OF A CONTRACT SOUNDS IN CONTRACT LAW, NOT NEGLIGENCE; NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that the negligence cause of action was really a breach of contract action and therefore the negligence cause of action should have been dismissed. The underlying contract was for demolition and construction work and the complaint alleged damage by the diversion of water:

… [W]e agree with J. Luke [defendant demolition-construction contractor] that  [the negligence cause of action] should have been dismissed. Town Homes [defendant property owner] denominated that claim as one for negligence, alleging that J. Luke deviated from accepted standards of care by failing to perform contracted-for demolition and construction work “in a good workmanlike manner.” Supreme Court correctly categorized those assertions as a claim for negligent performance of contract; the problem is “that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” … . A failure to plead a cognizable claim would not warrant summary judgment if Town Homes subsequently made out a viable cause of action … . Town Homes never suggested that J. Luke owed it a duty of care independent from the contract, however, and confirmed in its opposition to J. Luke’s motion that the issue was whether J. Luke rendered subpar performance under the contract. Accordingly, in the absence of any indication that J. Luke owed an independent duty to Town Homes arising “from circumstances extraneous to, and not constituting elements of, the contract” … . 517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC, 2019 NY Slip Op 07461, Third Dept 10-17-19

 

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