| Heffez v L & G Gen. Constr., Inc. |
| 2008 NY Slip Op 08709 [56 AD3d 526] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Albert Heffez et al., Appellants, v L & G GeneralConstruction, Inc., et al., Respondents. |
—[*1] Ronald Francis, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract, negligence, fraud, andfraudulent inducement, the plaintiffs appeal, as limited by their brief, from so much an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated December 17, 2007, as granted thosebranches of the defendants' motion which were pursuant to CPLR 3211 (a) (7) to dismiss thecauses of action to recover damages for negligence, fraud, and fraudulent inducement insofar asasserted against the defendant L & G General Construction, Inc., and to dismiss the complaintinsofar as asserted against the defendants Lev Namyotov and Eugene Namyotov.
Ordered that the order is affirmed insofar as appealed from, with costs.
In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), "the sole criterion iswhether the pleading states a cause of action, and if from its four corners factual allegations arediscerned which taken together manifest any cause of action cognizable at law a motion fordismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "Thecomplaint must be liberally construed in the light most favorable to the plaintiffs and all factualallegations must be accepted as true" (Holly v Pennysaver Corp., 98 AD2d 570, 572[1984]).
"It is a well-established principle that a simple breach of contract is not to be considered atort unless a legal duty independent of the contract itself has been violated"(Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). The "legal dutymust spring from [*2]circumstances extraneous to, and notconstituting elements of, the contract, although it may be dependent upon the contract" (id.at 389). A contracting party may be held liable in tort to a person not a party to the contract ifthe contracting party created an unreasonable risk of harm or increased a risk by launching aforce or instrument of harm, if the noncontracting party sustained an injury as a result of his orher reasonable reliance upon the contracting party's continuing performance of a contractualobligation, or where the contracting party has entirely displaced another's duty to safely maintainthe relevant premises (see Regatta Condominium Assn. v Village of Mamaroneck, 303AD2d 739, 740 [2003]).
Likewise, a cause of action premised upon fraud cannot lie where it is based on the sameallegations as the breach of contract claim (see McKernin v Fanny Farmer Candy Shops,176 AD2d 233 [1991]). Further, mere conclusory language, without specific and detailedallegations establishing material misrepresentations of fact, is insufficient to state a cause ofaction to recover damages for fraud (seeOld Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678 [2005]).
Here, the plaintiffs, who entered into a contract for home reconstruction with the defendant L& G General Construction, Inc. (hereinafter L & G), did not allege or demonstrate that thedefendants owed them a legal duty independent of the contractual duty (see Sargent v New York Daily News, L.P.,42 AD3d 491 [2007]). The allegations of negligence and fraud are the same as thoseunderpinning the breach of contract cause of action, and "allege[ ] nothing more than a breach ofcontract and [a breach of] any covenants implied" (New York Univ. v Continental Ins. Co.,87 NY2d 308, 318 [1995]). Moreover, the contracting plaintiffs failed to establish that theysustained any injury or damage to person or property, a requirement of a negligence cause ofaction (see Benjamin v City of New York, 99 AD2d 995 [1984], affd 64 NY2d44 [1984]).
The plaintiffs also failed to sufficiently plead a cause of action sounding in fraudulentinducement against the individual defendants Lev Namyotov and Eugene Namyotov.
Accordingly, the Supreme Court properly granted those branches of the defendants' motionwhich were to dismiss the causes of action sounding in negligence, fraud, and fraudulentinducement insofar as asserted against L & G and to dismiss the complaint insofar as assertedagainst Lev Namyotov and Eugene Namyotov. Mastro, J.P., Rivera, Covello and Leventhal, JJ.,concur.