KASEM v. PHILIP MORRIS USA (1997)

In an action to recover damages for breach of contract and negligence, the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated November 8, 1996, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting therefrom the provision denying that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for negligence and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the plaintiffs.

 “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” (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190;  see also, Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 29, 523 N.Y.S.2d 475, 517 N.E.2d 1360;  Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322, revg. 81 A.D.2d 221, 439 N.Y.S.2d 933, on dissenting opn. of Silverman, J.;   Suffolk Laundry Servs. v. Redux Corp., 238 A.D.2d 577, 656 N.Y.S.2d 372;   Key Int'l Mfg. v. Morse/Diesel, 142 A.D.2d 448, 451, 536 N.Y.S.2d 792).   The plaintiffs have not alleged that the defendant breached a legal duty independent of the contract (see, Suffolk Laundry Servs. v. Redux Corp., supra;  Burnell v. Morning Star Homes, 114 A.D.2d 657, 494 N.Y.S.2d 488), and therefore their cause of action to recover damages for negligence should be dismissed.

 With respect to the plaintiffs' cause of action sounding in breach of contract, we note that the plaintiffs are entitled to recover only for such incidental damages as flow directly from, and are the probable and natural result of, the breach (see, Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176;  Uniform Commercial Code § 2-715[1] ), and for lost profits that are reasonably certain in amount and traceable with reasonable certainty to the breach (see, Bibeau v. Ward, 228 A.D.2d 943, 645 N.Y.S.2d 107;  Manniello v. Dea, 92 A.D.2d 426, 461 N.Y.S.2d 582;  Clearview Concrete Prods. v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 453 N.Y.S.2d 750;  R & I Electronics v. Neuman, 66 A.D.2d 836, 411 N.Y.S.2d 401;  Donaldson, Inc. v. Aggregate Surfacing Corp. of Amer., 47 A.D.2d 852, 366 N.Y.S.2d 194).

MEMORANDUM BY THE COURT.