| Board of Mgrs. of Soho N. 267 W. 124th St. Condominium vNW 124 LLC |
| 2014 NY Slip Op 02513 [116 AD3d 506] |
| April 10, 2014 |
| Appellate Division, First Department |
| Board of Managers of Soho North 267 West 124th StreetCondominium, Appellant, v NW 124 LLC et al., Respondents, et al.,Defendants. |
—[*1] Penn & Associates, LLP, New York (Craig E. Penn of counsel), forrespondents.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or aboutDecember 6, 2012, which, to the extent appealed from as limited by the briefs, grantedthe sponsor defendants' NW 124 LLC, Bennett Holding LLC, Jeffrey Bennett and RefikRadoncic'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 aboutApril 12, 2013, which granted plaintiff's motion for reargument of the order entered onor about December 6, 2012 and, upon reargument, adhered to the prior ruling,unanimously dismissed, without costs, as academic; and order, same court and Justice,entered on or about October 15, 2013, which denied plaintiff's motion for leave to amendthe complaint to assert certain causes of action dismissed by the order entered on or aboutDecember 6, 2012, unanimously affirmed, without costs.
The Supreme Court correctly dismissed the second, third and fourth causes of actionalleging breach of implied warranty, negligence and negligent misrepresentation. Inopposition to defendants' motion to dismiss insofar as it sought dismissal of the secondcause of action, plaintiff did not argue that it had stated a valid cause of action for breachof implied warranty. Rather plaintiff argued that it wished to amend the complaint toinstead assert a cause of action for breach of implied covenant of good faith and fairdealing. Thus, to the extent plaintiff argues that Supreme Court erred in dismissing thesecond cause of action, alleging breach of implied warranty, the argument isunpreserved. Alternatively, the argument lacks merit (see 20 Pine St. Homeowners Assn. v 20 Pine St. LLC, 109AD3d 733 [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 beconsidered a tort unless a legal duty independent of the contract itself has been violated(Clark-Fitzpatrick, Inc. v [*2]Long Is. R.R. Co.,70 NY2d 382, 389 [1987]). Allegations of negligence based on defects in construction ofa condominium sound in breach of contract rather than tort (see Sutton Apts. Corp. v Bradhurst100 Dev. LLC, 107 AD3d 646, 648 [1st Dept 2013]; Board of Mgrs. of the Chelsea 19Condominium v Chelsea 19 Assoc., 73 AD3d 581, 582 [1st Dept 2010]). Aclaim for negligent misrepresentation is not separate from a breach of contract claimwhere the plaintiff fails to allege a breach of any duty independent from contractualobligations (seeGreenman-Pedersen, Inc. v Levine, 37 AD3d 250, 251 [1st Dept 2007]). Here,plaintiff failed to allege any legal duty that would give rise to an independent tort causeof action. Neither General Business Law article 23-A nor its regulations create a specialduty or support a private right of action. Thus, the negligence and negligentmisrepresentation claims were duplicative of the breach of contract claim and did notstate a cause of action.
Supreme Court did not abuse its discretion in denying plaintiff's motion to amend thecomplaint. 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 thedamages allegedly resulting from a breach of the contract' " (Bostany v Trump Org. LLC,73 AD3d 479, 481 [1st Dept 2010]). Thus, to the extent plaintiff sought to amendthe 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, tothe extent plaintiff sought to amend the complaint to assert the dismissed claims fornegligence and negligent misrepresentation, Supreme Court did not abuse its discretionin denying the motion as futile. Concur—Friedman, J.P., Moskowitz, Freedman,Gische and Clark, JJ.