| Clemens Realty, LLC v New York City Dept. of Educ. |
| 2008 NY Slip Op 00219 [47 AD3d 666] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Clemens Realty, LLC, Appellant, v New York CityDepartment of Education, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Jane L.Gordon of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Queens County (Kelly, J.), dated January 5, 2007, which grantedthe defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7) anddenied its cross motion for leave to amend its complaint.
Ordered that the order is affirmed, with costs.
Education Law § 3813 (2-b) provides that no action or special proceeding shall becommenced against a school district more than one year after the cause of action arose. A breachof contract cause of action arises when the "party seeking payment should have viewed his claimas having been constructively rejected" (Henry Boeckmann, Jr. & Assoc. v Board of Educ.,Hempstead Union Free School Dist. No. 1, 207 AD2d 773, 775 [1994] [internal quotationmarks omitted]; see James McCullaghCo., Inc. v South Huntington Union Free School Dist., 39 AD3d 480, 481 [2007]; Matter of Mahopac Cent. School Dist. vPiazza Bros., Inc., 29 AD3d 699, 700 [2006]; Capstone Enters. of Port Chester, Inc. v Valhalla Union Free SchoolDist., 27 AD3d 411, 411-412 [2006]; Dodge, Chamberlin, Luzine, Weber Architectsv Dutchess County Bd. of Coop. Educ. Servs., 258 AD2d 434 [1999]). Here, the defendantestablished that the plaintiff's claim was constructively rejected more than one year beforecommencement of the action (see James McCullagh Co., Inc. v South Huntington Union FreeSchool Dist., 39 AD3d at 481; D.J.H. Mech. Assoc., Ltd. v Mahopac Cent. School Dist., 21 AD3d521, 522 [2005]; Dodge, Chamberlin, [*2]Luzine, WeberArchitects v Dutchess County Bd. of Coop. Educ. Servs., 258 AD2d 434 [1999]).Accordingly, the Supreme Court properly dismissed this cause of action as time-barred.
In addition, the Supreme Court also correctly dismissed the second cause of action seeking torecover damages for breach of duty of care. "[A] simple breach of contract is not to be considereda tort unless a legal duty independent of the contract itself has been violated. This legal duty mustspring from circumstances extraneous to, and not constituting elements of, the contract, althoughit may be connected with and dependent upon the contract" (Clark-Fitzpatrick, Inc. v Long Is.R.R. Co., 70 NY2d 382, 389 [1987] [citations omitted]; see Sargent v New York Daily News, L.P., 42 AD3d 491, 493[2007]; Brown v Wyckoff Hgts. Med.Ctr., 28 AD3d 412, 413 [2006]; Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d678, 680 [2005]; Briar Contr. Corp. v City of New York, 156 AD2d 628, 629[1989]; see also Wecker v Quaderer, 237 AD2d 512, 513 [1997]). In fact, "[s]implyalleging a duty of due care does not transform a breach of contract action into a tort claim"(Briar Contr. Corp. v City of New York, 156 AD2d at 629; see Old Republic Natl.Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d at 680). The plaintiff failed to allege ordemonstrate that the defendant owed it a legal duty independent of the contractual duty, and thatthe defendant breached that independent duty. Accordingly, the Supreme Court properlydismissed this cause of action as well.
In light of this determination, the plaintiff's remaining contention has been renderedacademic. Rivera, J.P., Spolzino, Carni and McCarthy, JJ., concur.