Opinion
June 22, 1992
Appeal from the Supreme Court, Nassau County (McCabe, J.).
Ordered that the order is reversed, on the law, with costs, the motion for partial summary judgment is granted, and the fourth and fifth causes of action of the complaint are dismissed.
The plaintiffs set forth six causes of action alleging, inter alia, breach of contract, negligence, and fraud. The fourth cause of action sounded in negligence. However, the plaintiffs failed to allege a legal duty or relationship independent of the defendant's contractual obligations to waterproof the roof of the plaintiffs' building. It is a "well established principle that a breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated" (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389; see also, Sommer v. Federal Signal Corp., 79 N.Y.2d 540; Hoydal v City of New York, 154 A.D.2d 345, 346). The fifth cause of action sounded in fraud. However, a cause of action sounding in fraud is not stated when the only fraud charged relates to the breach of a contract (see, Affiliated Credit Adjustors v. Carlucci Legum, 139 A.D.2d 611; Kotick v. Desai, 123 A.D.2d 744). Therefore, the plaintiffs failed to set forth a cause of action based on either negligence or fraud.
In light of the foregoing we need not reach the defendant's remaining contentions. Mangano, P.J., Harwood, Balletta and Eiber, JJ., concur.