HOWELL CO LLC v. CONTROL POINT ASSOCIATES INC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), dated March 27, 2023.  The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the cause of action sounding in negligence.

ORDERED that the order is affirmed, with costs.

In November 2022, the plaintiff commenced this action alleging that the defendant, which the plaintiff had retained to perform professional construction surveying services, committed surveying errors in establishing benchmarks for the construction of a building, resulting in that building being built approximately 1.65 feet higher than designed and intended.  The complaint asserted causes of action to recover damages for breach of contract and negligence.

Thereafter, the defendant moved pursuant to CPLR 3211(a) to dismiss the cause of action sounding in negligence.  In an order dated March 27, 2023, the Supreme Court granted the defendant's motion on the ground that the allegations supporting the cause of action sounding in negligence were the same as the allegations supporting the cause of action to recover damages for breach of contract.  The plaintiff appeals.

“It is a well-established principle 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” (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 [internal quotation marks omitted];  see 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).  “[W]here the damages alleged were clearly within the contemplation of the written agreement[,] ․ merely charging a breach of a duty of due care, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim” (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 [alteration and internal quotation marks omitted]).  Here, the complaint did not allege facts that would give rise to a duty owed to the plaintiff that is independent of the duty imposed by the parties’ contract.  Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the cause of action sounding in negligence (see IKB Intl., S.A. v. Wells Fargo Bank, N.A., 40 N.Y.3d at 292, 197 N.Y.S.3d 719, 220 N.E.3d 646;  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;  Michael Davis Constr., Inc. v. 129 Parsonage Lane, LLC, 194 A.D.3d 805, 807, 149 N.Y.S.3d 118;  Oceanview Assoc., LLC v. HLS Bldrs. Corp., 184 A.D.3d 843, 845, 126 N.Y.S.3d 755).

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and MCCORMACK, JJ., concur.