Summary
upholding summary judgment for defendant on negligence and negligent misrepresentation claims because no triable issue of fact existed as to whether defendant owed duty of care to plaintiff
Summary of this case from St. Paul Fire and Marine v. Heath Fielding Ins.Opinion
May 2, 1994
Appeal from the Supreme Court, Orange County (Miller, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Hudson Engineering Associates (hereinafter the engineer) was retained by the defendant Noel Kramer (hereinafter the owner) to process a subdivision application of a parcel of land. The engineer commenced this action to recover the balance allegedly due pursuant to the parties' contract, and the owner counterclaimed, claiming that the engineer was responsible for, among other things, the owner's lost profits, when the engineer failed to obtain a subdivision of greater than two lots.
Contrary to the owner's contention, the Supreme Court properly dismissed the second and fourth counterclaims sounding in negligent misrepresentation and negligence, respectively, since, upon the engineer making out a prima facie cause for summary judgment, the owner failed to raise a triable issue of fact as to whether the engineer had breached a duty which was independent of the obligations pursuant to the contract (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389-390; see also, RKB Enters. v. Ernst Young, 182 A.D.2d 971, 972; Albemarle Theatre v. Bayberry Realty Corp., 27 A.D.2d 172, 175-177).
Further, the Supreme Court properly dismissed the owner's claim for lost profits of $625,000 for the value of five subdivided lots as too speculative and incapable of being proven with any degree of certainty, since there was no evidence that the engineer would have been able to obtain permission to subdivide the property into a greater number of lots (see, Brown v. Samalin Bock, 168 A.D.2d 531).
There is no merit to the owner's claim that he was given inadequate notice that the engineer's motion was one for summary judgment under CPLR 3212, since the moving papers clearly indicated that the motion was made pursuant to both CPLR 3211 and 3212, and the record indicates that the parties treated the motion accordingly.
In light of the foregoing, we do not reach the owner's remaining contentions. Mangano, P.J., Thompson, Joy and Friedmann, JJ., concur.