Negligence Claim Cannot Be Based on Alleged Failure Adequately to Perform Contractual Duties

On July 9, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Cornice LLC v. 2LS Consul Ting Eng'g, D.P.C., 2019 NY Slip Op. 31964(U), holding that a negligence claim cannot be based on an alleged failure adequately to perform contractual duties, explaining:

However, the second cause of action grounded in negligence fails. Although defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfil its contractual obligations,, there are no such allegations in the Amended Complaint. Simply put, the gravamen of the allegations set forth in the Amended Complaint is that the defendant did not properly perform. Therefore, the second cause of action for negligence in the Amended Complaint is dismissed.

(Internal citations omitted).

Commercial disputes often concern contracts. However, disputes relating to commercial transactions also can give rise to tort claims, such as fraud, breach of fiduciary duty, tortious interference and, as here, negligence or gross negligence. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you have been injured in a commercial transaction but the injury did not involve a breach of a contract.