MESEROLE HUB LLC v. ROSENZWEIG (2025)

DECISION & ORDER

In an action to recover damages for breach of contract and gross negligence, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated January 19, 2023.  The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the second cause of action in the amended complaint, alleging gross negligence.

ORDERED that the order is affirmed, with costs.

In December 2014, Builders Assistance Corp., on behalf of the plaintiff, entered into a contract with the defendant Solomon Rosenzweig, PE, P.C. (hereinafter SRPE), by which SRPE was to provide engineering services to the plaintiff in connection with the development of certain real property located in Brooklyn.  The plaintiff subsequently commenced this action against SRPE and its principal, the defendant Solomon Rosenzweig.  In the amended complaint, the plaintiff asserted causes of action alleging breach of contract and gross negligence.  The defendants moved pursuant to CPLR 3211(a) to dismiss the second cause of action, alleging gross negligence.  In an order dated January 19, 2023, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

The Supreme Court properly granted the defendants' motion to dismiss the cause of action alleging gross negligence as duplicative of the cause of action alleging breach of contract.  “[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated,” and where a “plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory” (IKB Intl., S.A. v. Wells Fargo Bank, N.A., 40 N.Y.3d 277, 290, 197 N.Y.S.3d 719, 220 N.E.3d 646 [internal quotation marks omitted];  see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 711, 70 N.Y.S.3d 893, 94 N.E.3d 456).  In determining whether claims are duplicative, courts evaluate “the nature of the injury, how the injury occurred and the harm it caused” (IKB Intl., S.A. v. Wells Fargo Bank, N.A., 40 N.Y.3d at 291, 197 N.Y.S.3d 719, 220 N.E.3d 646 [internal quotation marks omitted];  see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d at 711, 70 N.Y.S.3d 893, 94 N.E.3d 456).

Here, the amended complaint did not allege facts that would give rise to a duty owed to the plaintiff that was independent of the duty imposed by the parties' contract, and the plaintiff was essentially seeking the contractual benefit of its bargain (see Michael Davis Constr., Inc. v. 129 Parsonage Lane, LLC, 194 A.D.3d 805, 807, 149 N.Y.S.3d 118).  The injury alleged was economic in nature—namely, the cost of correcting certain defects, lost income, and the decreased value of the building—and the injury did not occur as a result of an abrupt, cataclysmic occurrence but was rather the result of the defendants' alleged failure to perform under the contract (see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d at 713, 70 N.Y.S.3d 893, 94 N.E.3d 456).  “Put another way, there was no injury alleged here that a separate negligence claim would include that is not already encompassed in [the plaintiff's] contract claim” (id.).

The parties' remaining contentions need not be reached in light of our determination.

DILLON, J.P., GENOVESI, LANDICINO and MCCORMACK, JJ., concur.