Sestito v. Vickers

• Decision Date: 22 August 2019
• Docket Number: 543.2,CA 17–01392
• Citation: 175 A.D.3d 955,107 N.Y.S.3d 574
• Parties: Ellen Sue SESTITO, Plaintiff–Respondent–Appellant, v. David L. VICKERS & Sons and David L. Vickers, Individually, Defendants–Appellants–Respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 955
107 N.Y.S.3d 574

Ellen Sue SESTITO, Plaintiff–Respondent–Appellant,
v.
David L. VICKERS & Sons and David L. Vickers, Individually, Defendants–Appellants–Respondents. (Appeal No. 2.)

543.2
CA 17–01392

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 22, 2019

SAUNDERS KAHLER, LLP, UTICA (MERRITT S. LOCKE OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS.

BOSMAN LAW FIRM, LLC, ROME (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

107 N.Y.S.3d 575

MEMORANDUM AND ORDER

175 A.D.3d 955

It is hereby ORDERED that the judgment so appealed from is unanimously vacated and the order entered December 10, 2015 is modified on the law by granting that part of the motion of defendants David L. Vickers & Sons and David L. Vickers, individually, for summary judgment dismissing the negligence cause of action and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced these consolidated actions against several parties, including David L. Vickers & Sons and David L. Vickers, individually (collectively, Vickers defendants) seeking damages arising from the allegedly defective construction of homes that they had contracted with the Vickers defendants to build in a housing development. In appeal No. 1, the Vickers defendants appeal and plaintiffs-respondents-appellants (plaintiffs) cross-appeal from an order that, inter alia, granted in part the Vickers defendants' motion for summary judgment by dismissing all causes of action against them except, as relevant here, those sounding in negligence. In appeal Nos. 2 through 8, the Vickers defendants appeal and plaintiffs cross-appeal from seven judgments entered on the jury's finding of negligence on the part of the Vickers defendants.

Initially, we dismiss the appeal and the cross appeal in appeal

175 A.D.3d 956

No. 1 because the right to appeal from the intermediate order terminated upon the entry of the judgments in appeal Nos. 2 through 8 (see Charter Sch. for Applied Tech. v. Board of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460, 1461, 964 N.Y.S.2d 366 [4th Dept. 2013] ; Smith v. Catholic Med. Ctr. of Brooklyn & Queens, 155 A.D.2d 435, 435, 547 N.Y.S.2d 96 [2d Dept. 1989] ). The issues raised in appeal No. 1 concerning the order will be considered on the appeal and the cross appeal from the judgments in appeal Nos. 2 through 8 (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ).

We agree with the Vickers defendants' contention on their appeal that Supreme Court erred in denying that part of their motion seeking summary judgment dismissing the negligence causes of action. We therefore vacate the judgments in appeal Nos. 2 through 8 and modify the order in appeal No. 1 accordingly. This is a case in which the causes of action for contract and tort appear to overlap, i.e., "where the parties' relationship initially is formed by contract, but there is a claim that the contract was performed negligently" ( Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992] ). It is well established that "a simple breach of contract is not to be considered a tort unless a legal duty...