City of Watertown v. Stebbins Engineering & Manufacturing Co.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court improperly denied defendants’ motions to dismiss plaintiff’s second cause of action alleging negligent performance of contractual services. A breach of contract does not give rise to a tort unless facts supporting the breach of a legal duty independent of the contract are alleged (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389; see also, County of Chautauqua v Pacos Constr. Co., 195 AD2d 1021). Plaintiff has not alleged such facts.

We have reviewed defendants’ remaining contentions and find them to be without merit. (Appeals from Order of Supreme Court, Jefferson County, Gilbert, J.—Dismiss Complaint.) Present—Green, J. P., Balio, Lawton, Wesley and Boehm, JJ.