On January 15, 2025, the Second Department issued a decision in Meserole Hub, LLC v. Rosenzweig, 2025 NY Slip Op. 00213, holding that a negligence claim against an engineer should be dismissed as duplicative of a breach of contract claim seeking the same damages, explaining:
The Supreme Court properly granted the defendants’ motion to dismiss the cause of action alleging gross negligence as duplicative of the cause of action alleging breach of contract. A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated, and where a plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory. In determining whether claims are duplicative, courts evaluate the nature of the injury, how the injury occurred and the harm it caused.
Here, the amended complaint did not allege facts that would give rise to a duty owed to the plaintiff that was independent of the duty imposed by the parties’ contract, and the plaintiff was essentially seeking the contractual benefit of its bargain. The injury alleged was economic in nature—namely, the cost of correcting certain defects, lost income, and the decreased value of the building—and the injury did not occur as a result of an abrupt, cataclysmic occurrence but was rather the result of the defendants’ alleged failure to perform under the contract. Put another way, there was no injury alleged here that a separate negligence claim would include that is not already encompassed in the plaintiff’s contract claim.
(Internal quotations and citations omitted).