Opinion
Index No. 521876/2022 Motion Seq. No. 1
10-24-2023
503 EVERGREEN AVENUE LLC, Plaintiff, v. METROPOLITAN REALTY EXEMPTIONS INC., Defendants,
UNPUBLISHED OPINION
DECISION AND ORDER
HON. LEON RUCHELSMAN JUDGE.
The plaintiff has moved seeking summary judgement pursuant to CPLR §3212 arguing there are no questions- of fact the defendants breached the contract. The defendants oppose the motion. Papers were submitted by the parties and arguments held and after reviewing all the arguments this court now makes the following determination.
On November 7, 2019, the plaintiff hired the defendant to prepare and file applications for tax abatements pursuant to RPTL §421-a(16) regarding property located at 499 Evergreen Avenue in Kings County., The property that was the subject of the. contract contained eight dwelling units,. The defendant erroneously submitted an application for a nine dwelling unit property. The defendant sought to remedy the mistake and obtain the tax abatements. Thus, on March 10, 2022 Martin Joseph the chief executive officer of the defendant submitted an affidavit to the New York, City Department of Housing Preservation, and Development [hereinafter 'HPD'] admitting the mistake, acknowledging the mistake was solely due to the defendant and that the plaintiff should be afforded an opportunity to correct the mistake to take advantage of the tax abatements (see, Affidavit of Martin Joseph [NYSCEF Doc. No. 12]). HPD declined the ability to correct the mistake whereupon this lawsuit was commenced. The complaint asserts causes of action for breach of contract and negligence. The plaintiff has now moved seeking summary judgement arguing there are no questions of fact the defendant breached the contract and committed negligence.
Conclusions of Law
Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. Citv of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept,, 2021).
It is well settled that to succeed upon a claim of breach of contract the plaintiff must establish the existence of a contract, the plaintiff's performance, the defendant's breach and resulting damages (Harris v. Seward Park Housing Corp.., 7 9 A.D.3d 425, 913 N.Y.S.2d 161 [1st Dept., 2010]).
Generally, merely alleging the breach of a contract duty arose from a lack of due care will riot transform a breach of contract claim into a tort claim (Sommer v. Federal Signal Corp., 7 9 N.Y.2d 540, 583 N.Y.S.2d 957 [1992]"). The court in Sommer explained that legal duties independent of contract claims could be imposed upon professionals, common carries and bailees as a matter of policy where there is a duty owed by the professional independent of the duty imposed by the contract. Indeed, while some stales recognize the tort of negligent breach of contract (see, Hayton Farms Inc., v. Pro-Fac Corp., Inc., 2010 WL 5174349 [Western District of Washington 2010]) in New York there is no tort cause of action for the negligent performance of a contract (see, Attallah v. New York College of Osteopathic Medicine,, 18 9 A.D.3d 1324, 134 N.Y.S.3d 793 [2d Dept., 2020]).
Thus an examination of the two causes of action is necessary. The breach of contract claim against the defendant is essentially contained within paragraph 21 of the Complaint. That paragraph states that "Defendant breached the Contract: when Defendant's error in drafting and filing the Workbook for 499 Evergreen resulted in the denial of the 421-a tax abatement for 499 Evergreen" (see. Verified Complaint,, ¶21 [NYSCEF Doc. No. 1]). The allegations supporting the professional negligence cause of action is essentially contained within paragraph 30 of the Complaint. That paragraph states that "by making the material misrepresentation in the Workbook for 499 Evergreen, Defendant failed to conform to the standard of care and duty with respect to the Plaintiff" (see, Verified Complaint, ¶30 [NYSCEF Doc. No. 1]). However, the negligence cause of action does not contain any specific conduct that is different from the breach of contract allegation. As the court held in Dormitory Authority of the State of New York v. Samson Construction Co., 30 N.Y.3d 704, 70 N.Y.S.3d 893 [2018] where the negligence allegations are merely a ''restatement" of the breach of contract allegations the negligence action must be dismissed (see. Board of Managers of Beacon Tower Condominium v. 85 Adams Street LLC, 136 A.D.3d 680, 25 N.Y.S.3d 233 [2d Dept,, 2016]).
Therefore, the motion seeking summary judgement regarding the negligence cause of action is denied.
Turning to the breach of contract claim, there is no question, that a breach of contract may be established even., like here, where the breach was inadvertent. Thus, the plaintiff has sufficiently demonstrated a breach of the agreement which is hot even disputed.
Therefore, while there is no issue regarding liability, there are significant questions regarding damages which cannot be summarily decided. Therefore, the parties must engage in discovery, including expert testimony, if sought, and if necessary a trial on the issue of damages may follow.
Thus, the motion seeking summary judgement on the first cause of action on the issue of liability only is granted.
So ordered.