Wecker v. Quaderer

15 Citing cases

  1. Bellis v. the Tokio Marine and Fire Insurance Company

    93 Civ. 6549 (DAB) (S.D.N.Y. Feb. 5, 2002)   Cited 18 times
    Stating that objections to sufficiency of service were waived when not raised in motion for summary judgment

    ; see also Clark-Fitzpatrick, 70 N.Y.2d 382, 389 ("[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated." (citations omitted)); see generally Megaris Furs, Inc v. Gimble Bros., Inc., 568 N.Y.S.2d 581, 583 (N.Y.App.Div. 1991) (no cause of action for negligent breach of contract exists under New York law); see also Wecker v. Quaderer, 655 N.Y.S.2d 93, 94 (N.Y.App.Div. 1997) (finding that "[e]ven though the plaintiff couched the complaint in terms of negligent performance, it [was] essentially a breach of contract claim" and as such contribution could not be sought).

  2. Galvin Bros., Inc. v. Town of Babylon

    91 A.D.3d 715 (N.Y. App. Div. 2012)   Cited 25 times

    “[T]he existence of some form of tort liability is a prerequisite to application of” CPLR 1401 ( Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d at 28, 523 N.Y.S.2d 475, 517 N.E.2d 1360). Since the plaintiff seeks damages for purely economic loss, the Supreme Court properly determined that the Town's cross claim against Hanes for contribution should be dismissed ( see Structure Tone, Inc. v. Universal Servs. Group, Ltd., 87 A.D.3d 909, 911, 929 N.Y.S.2d 242; Wecker v. Quaderer, 237 A.D.2d 512, 655 N.Y.S.2d 93).

  3. Clemens v. N.Y.C

    47 A.D.3d 666 (N.Y. App. Div. 2008)   Cited 24 times

    This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract" ( Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [citations omitted]; see Sargent v New York Daily News, L.P., 42 AD3d 491, 493; Brown v Wyckoff Hgts. Med. Ctr., 28 AD3d 412, 413; Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678, 680; Briar Contr. Corp. v City of New York, 156 AD2d 628, 629; see also Wecker v Quaderer, 237 AD2d 512, 513). In fact, "[s]imply alleging a duty of due care does not transform a breach of contract action into a tort claim" ( Briar Contr. Corp. v City of New York, 156 AD2d at 629; see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d at 680).

  4. Westbank Contracting, Inc. v. Rondout Valley Central School District

    46 A.D.3d 1187 (N.Y. App. Div. 2007)   Cited 31 times
    Noting that a party can bring an action for indemnification when there is a written contract providing for indemnification or where indemnification is implied under common law

    "'[T]he determining factor as to the availability of contribution is not the theory behind the underlying claim but the measure of damages sought'" ( Rothberg v Reichelt, 270 AD2d 760, 762, quoting Rockefeller Univ. v Tishman Constr. Corp. of N.Y., 240 AD2d 341, 343, lv denied 91 NY2d 803). While Rondout employs language asserting negligence in some of its causes of action against Sear-Brown, the damages it seeks (i.e., costs for repairs, completing work and delays in opening schools) are for economic loss and, accordingly, Supreme Court properly concluded that contribution was inapplicable ( see Rothberg v Reichelt, 270 AD2d at 762-763; Wecker v Quaderer, 237 AD2d 512, 513; see also Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 390). The remaining arguments have been considered and found unavailing.

  5. High Point of Hartsdale I Condominium v. AOI Construction, Inc.

    31 A.D.3d 712 (N.Y. App. Div. 2006)   Cited 1 times

    The defendant AOI Construction, Inc., also known as AOI Restoration, Inc. (hereinafter AOI), conceded that it would not be entitled to indemnification or contribution from the appellant if it was held liable to the plaintiff ( see CPLR 1401; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw Folley, 71 NY2d 21, 26; Wecker v Quaderer, 237 AD2d 512, 513). Furthermore, should AOI be held liable to the plaintiff because of its breach of the construction contract, AOI, which would not be held vicariously liable for the appellant's acts, would also not be entitled to common-law indemnification from the appellant ( see Edgewater Constr. Co. v 81 3 of Watertown, 252 AD2d 951, 952-953; Trustees of Columbia Univ. v Mitchell I Giurgola Assoc, 109 AD2d 449, 453-454).

  6. Surgical Design Corporation v. Correa

    290 A.D.2d 435 (N.Y. App. Div. 2002)   Cited 4 times
    In Surgical Design Corp. v. Correa (290 AD2d 435 [2d Dept 2002]), the Appellate Division held that an employer could not enforce a notice-of-termination clause in an employment contract, where the contract called for the employee to perform illegal activities.

    Under the facts of this case, the notice of termination clause cannot be enforced against Decote because it would have required Decote to continue to perform illegal activities for six additional months (see, City of New York v. 17 Vista Assocs., 84 N.Y.2d 299; McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465). Moreover, the plaintiff's allegation that Decote breached an oral contract is unsupported by the record and is essentially the same allegation contained in its cause of action to recover damages for conversion and breach of fiduciary duty. Thus, the breach of contract cause of action against Decote should be dismissed (see, Lakeville Pace Mech. v. Elmar Realty Corp., 276 A.D.2d 673; Wecker v. Quaderer, 237 A.D.2d 512). In addition, so much of the cause of action as alleges tortious interference with Decote's written contract against Correa should also be dismissed (see, City of New York v. 17 Vista Assocs., supra; McConnell v. Commonwealth Pictures Corp., supra).

  7. Rothberg v. Reichelt

    270 A.D.2d 760 (N.Y. App. Div. 2000)   Cited 33 times
    Stating that a party may not seek contribution from another party where the alleged tort is essentially a breach of contract claim

    To that end, a review of plaintiff's complaint reveals that she is seeking to recover for a purely economic loss — namely, the cost of repairs and the difference in value between what defendants were contractually obligated to provide and what plaintiff actually received (see, Bellevue S. Assocs. v. HRH Constr. Corp., 78 N.Y.2d 282, 294-295). In short, plaintiff is seeking the benefit of her contractual bargain and, as such, no claim for contribution lies (see, Wecker v. Quaderer, 237 A.D.2d 512, 513; Tempforce Inc. v. Municipal Hous. Auth. of City of Schenectady, supra). Moreover, "[i]t is well settled that a claim arising out of an alleged breach of contract may not be converted into a tort action 'absent the violation of a legal duty independent of that created by the contract'" (Roklina v. Skidmore Coll., 268 A.D.2d 765, 766-767; [Jan. 13, 2000], slip opn p 3, quoting Scott v. KeyCorp., 247 A.D.2d 722, 725; see,Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21, 29, supra;Clark-Fitzpatrick Inc. v. Long Is. R. R. Co., 70 N.Y.2d 382, 389;Feinman v. Parker, 252 A.D.2d 869).

  8. Land, Air, Water Envtl. v. Britelite Elec

    252 A.D.2d 573 (N.Y. App. Div. 1998)   Cited 3 times

    The complaint and cross claims seek damages for economic loss resulting from an alleged breach of contract, and present no issue of tort liability. Therefore, a claim for contribution or indemnity is legally untenable (see, CPLR 1401; Board of Educ. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21; Wecker v. Quaderer, 237 A.D.2d 512; Politte v. Sherman, 168 A.D.2d 761; Dormitory Auth. v. Scott, 160 A.D.2d 179). Britelite's remaining contentions are without merit.

  9. Feinman v. Parker

    252 A.D.2d 869 (N.Y. App. Div. 1998)   Cited 8 times

    summary judgment seeking the dismissal of a cause of action alleging that a corporate officer of a construction firm was individually liable for negligence and breach of contract ( see, Barry v. Saratoga Home, 137 A.D.2d 897, 899). Barry v. Saratoga Homes (supra) can no longer be considered authoritative precedent on the issues herein since it is now well established that mere breach of a contract does not give rise to a tort cause of action unless a legal duty independent of the contract has been violated ( see, Clark-Fitzpatrick, Inc. v. Long Is. R. R. Co., 70 N.Y.2d 382, 389; Fourth Branch Assocs. Mechanicville v. Niagara Mohawk Power Corp. 235 A.D.2d 962, 963). Although plaintiffs have couched their complaint in terms of negligence, in reality it is a breach of contract action as they are only seeking recovery for their economic loss and have not alleged that defendant breached a duty independent of the contract ( see, Clark-Fitzpatrick, Inc. v. Long Is. R. R. Co., supra, at 390; Wecker v. Quaderer, 237 A.D.2d 512). Thus, they do not have a viable negligence claim against defendant.

  10. Hirshorn v. Little Lake Estates, Inc.

    251 A.D.2d 377 (N.Y. App. Div. 1998)   Cited 4 times

    Since the limited warranty excluded any common-law implied warranty the first cause of action sounding in common-law breach of contract must be dismissed (see, Fumarelli v. Marsam Dev., 238 A.D.2d 470). The third cause of action against Pacchiana, president of the builder, alleging professional malpractice, must also be dismissed. Although the plaintiffs couched that cause of action in terms of negligent performance, the complaint sounds essentially in common-law breach of contract (see, Clark-Fitzpatrick, Inc. v. Long Is. R. R. Co., 70 N.Y.2d 382, 390; Wecker v. Quaderer, 237 A.D.2d 512; Bristol-Myers Squibb, Indus. Div. v. Delta Star, 206 A.D.2d 177; Key Intl. Mfg. v. Morse/Diesel, Inc., 142 A.D.2d 448, 452-453), which is barred by the terms of the limited warranty (see, Fumarelli v. Marsam Dev., supra). The limited warranty extended "to that which is required by the applicable building code and in the absence of same, locally accepted building practices".