Kasem v. Phillip Morris, USA

• Decision Date: 24 November 1997
• Citation: 244 A.D.2d 532,664 N.Y.S.2d 469
• Parties: , 1997 N.Y. Slip Op. 10,671 Maher KASEM, et al., Respondents, v. PHILIP MORRIS, USA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 469

664 N.Y.S.2d 469

244 A.D.2d 532, 1997 N.Y. Slip Op. 10,671

Maher KASEM, et al., Respondents, v. PHILIP MORRIS, USA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 24, 1997.

Arnold & Porter, New York City (David Futterman, of counsel), for appellant.

Peter J. Sebekos, Brooklyn, for respondents.

Before ROSENBLATT, J.P., and O'BRIEN, THOMPSON, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract and negligence, the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated November 8, 1996, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting therefrom the provision denying that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for negligence and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiffs.

"It is a well-established principle that a simple 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, 521 N.Y.S.2d 653, 516 N.E.2d 190; see also, Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 29, 523 N.Y.S.2d 475, 517 N.E.2d 1360; Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322, revg. 81 A.D.2d 221, 439 N.Y.S.2d 933, on dissenting opn. of Silverman, J.; Suffolk Laundry Servs. v. Redux Corp., 238 A.D.2d 577, 656 N.Y.S.2d 372; Key Int'l Mfg. v. Morse/Diesel, 142 A.D.2d 448, 451, 536 N.Y.S.2d 792). The plaintiffs have not alleged that the defendant breached a legal duty independent of the contract (see, Suffolk Laundry Servs. v. Redux Corp., supra; Burnell v. Morning Star Homes, 114 A.D.2d 657, 494 N.Y.S.2d 488), and therefore their cause of action to recover damages for negligence should be dismissed.

With respect to the plaintiffs' cause of action sounding in breach of contract, we note that the plaintiffs are entitled to recover only for such incidental damages as flow directly from, and are the probable and natural result of, the breach (see, Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176; Uniform Commercial Code § 2-715[1] ), and for lost...