| Woodhill Elec. v Jeffrey Beamish, Inc. |
| 2010 NY Slip Op 04496 [73 AD3d 1421] |
| May 27, 2010 |
| Appellate Division, Third Department |
| Woodhill Electric, Appellant, v Jeffrey Beamish, Inc.,Respondent. |
—[*1] Briggs Norfolk, L.L.P., Lake Placid (Matthew Norfolk of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Main Jr., J.), entered February 23,2009 in Essex County, which granted defendant's motion to dismiss the complaint.
Plaintiff commenced this action against defendant, alleging causes of action in negligenceand breach of contract after an electrical system plaintiff had installed in a residentialconstruction project began leaking water into the residence. Supreme Court granted defendant'smotion to dismiss the complaint, finding that plaintiff failed to state a cause of action. Plaintiffnow appeals.
We affirm. "[W]hen ruling on a motion to dismiss a claim for failure to state a cause ofaction, the court must afford the complaint a liberal construction, accept as true the allegationscontained therein, accord the plaintiff the benefit of every favorable inference and determineonly whether the facts alleged fit within any cognizable legal theory" (Bailey v Chernoff, 45 AD3d1113, 1116 [2007] [internal quotation marks and citation omitted]). Turning first toplaintiff's breach of contract claim, he contends that he entered into a contractual arrangementwith defendant, the general contractor on the construction project, to install the electrical system.In the complaint, plaintiff alleges that defendant breached the contract "by ordering plaintiff todo work at the [construction project] in a way that defendant was aware or should have beenaware that such orders breached the contract." In order to adequately plead a cause of action forbreach of contract, however, the complaint must allege the provisions of the contract that wereallegedly breached (see Kraus v Visa Intl. Serv. Assn., 304 AD2d 408, 408 [2003];Shields v School of [*2]Law of Hofstra Univ., 77 AD2d867, 868 [1980]). Here, the complaint does not set forth the particular terms of the contract uponwhich plaintiff's claim is based. Nor are the missing terms supplied by exhibit A to thecomplaint, which summarizes the parties' dealings and alleges that defendant dictated how thework should be done, but does not describe what was required of defendant other than to pay forthe work. Accordingly, the cause of action for breach of contract was properly dismissed (cf.G.H. Dorety Constr. v Joseph Francese, Inc., 252 AD2d 656, 657 [1998]).
Regarding plaintiff's negligence cause of action, the complaint does not allege a violation ofa legal duty of defendant independent of the alleged contract between the parties. Accordingly,this cause of action was also properly dismissed (see Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 389 [1987]; Lantzy v Advantage Bldrs., Inc., 60 AD3d 1254, 1256 [2009]; Venditti v Liberty Mut. Ins. Co., 6AD3d 961, 963 [2004]).
Peters, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.