Opinion
2014-04-10
BOARD OF MANAGERS OF SOHO NORTH 267 WEST 124TH STREET CONDOMINIUM, Plaintiff–Appellant, v. NW 124 LLC, et al., Defendants–Respondents, C3D Architecture, PLLC, et al., Defendants.
Ansell Grimm & Aaron, P.C., White Plains (Joshua S. Bauchner of counsel), for appellant. Penn & Associates, LLP, New York (Craig E. Penn of counsel), for respondents.
Ansell Grimm & Aaron, P.C., White Plains (Joshua S. Bauchner of counsel), for appellant. Penn & Associates, LLP, New York (Craig E. Penn of counsel), for respondents.
FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, GISCHE, CLARK, JJ.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about December 6, 2012, which, to the extent appealed from as limited by the briefs, granted the sponsor defendants' NW 124 LLC, Bennett Holding LLC, Jeffrey Bennett and Refik Radoncic's (defendants) motion to dismiss the second, third and fourth causes of action, unanimously affirmed, without costs; order, same court and Justice, entered on or about April 12, 2013, which granted plaintiff's motion for reargument of the order entered on or about December 6, 2012 and, upon reargument, adhered to the prior ruling, unanimously dismissed, without costs, as academic; and (3) order, same court and Justice, entered on or about October 15, 2013, which denied plaintiff's motion for leave to amend the complaint to assert certain causes of action dismissed by the order entered on or about December 6, 2012, unanimously affirmed, without costs.
The Supreme Court correctly dismissed the second, third and fourth causes of action alleging breach of implied warranty, negligence and negligent misrepresentation. In opposition to defendants' motion to dismiss insofar as it sought dismissal of the second cause of action, plaintiff did not argue that it had stated a valid cause of action for breach of implied warranty. Rather plaintiff argued that it wished to amend the complaint to instead assert a cause of action for breach of implied covenant of good faith and fair dealing. Thus, to the extent plaintiff argues that Supreme Court erred in dismissing the second cause of action, alleging breach of implied warranty, the argument is unpreserved. Alternatively, the argument lacks merit ( see 20 Pine St. Homeowners Assn. v. 20 Pine St. LLC, 109 A.D.3d 733, 971 N.Y.S.2d 289 [1st Dept.2013] ).
Supreme Court properly dismissed plaintiff's third and fourth causes of action, alleging negligence and negligent misrepresentation. 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 [1987] ). Allegations of negligence based on defects in construction of a condominium sound in breach of contract rather than tort ( see Sutton Apts. Corp. v. Bradhurst 100 Dev. LLC, 107 A.D.3d 646, 648, 968 N.Y.S.2d 483 [1st Dept.2013];Board of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc., 73 A.D.3d 581, 582, 905 N.Y.S.2d 8 [1st Dept.2010] ). A claim for negligent misrepresentation is not separate from a breach of contract claim where the plaintiff fails to allege a breach of any duty independent from contractual obligations ( see Greenman–Pedersen, Inc. v. Levine, 37 A.D.3d 250, 251, 829 N.Y.S.2d 107 [1st Dept.2007] ). Here, plaintiff failed to allege any legal duty that would give rise to an independent tort cause of action. Neither General Business Law art 23–A nor its regulations create a special duty or support a private right of action. Thus, the negligence and negligent misrepresentation claims were duplicative of the breach of contract claim and did not state a cause of action.
Supreme Court did not abuse its discretion in denying plaintiff's motion to amend the complaint. Since a claim for breach of implied duty of good faith and fair dealing “cannot be maintained where, as here, the alleged breach is ‘intrinsically tied to the damages allegedly resulting from a breach of the contract’ ” ( Bostany v. Trump Org. LLC, 73 A.D.3d 479, 481, 901 N.Y.S.2d 207 [1st Dept.2010] ). Thus, to the extent plaintiff sought to amend the complaint to assert a claim for breach of the covenant of good faith and fair dealing, Supreme Court did not abuse its discretion in denying the motion as futile. Similarly, to the extent plaintiff sought to amend the complaint to assert the dismissed claims for negligence and negligent misrepresentation, Supreme Court did not abuse its discretion in denying the motion as futile.