Kitchen-Sink Pleading Has Its Limits: Tort Claims Duplicative of Contract Claims will be Dismissed
Complaints filed in commercial litigations often take a kitchen-sink approach to pleading, asserting every conceivable liability theory – in tort and contract – to ensure that all bases are covered and maximum pressure is imposed on the other side. New York state courts, however, have made clear that this practice has its limits and a tort claim cannot be simultaneously pled with a breach of contract claim where it is duplicative.
The New York Court of Appeals spoke to the issue back in 1987, explaining 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 (1987). In other words, to survive dismissal, a plaintiff must allege that the legal duty allegedly breached in tort arose from circumstances and resulted in damages external to the contract at issue. Where the claims impermissibly overlap, motion practice and the dismissal of the tort claim are likely.
Nearly 40 years later, litigants continue, with mixed success, to try to walk the line between permissible pleading of varied liability theories and impermissible duplicative claims. The Second Department recently confirmed once again that this line does indeed exist, and duplicative claims on the wrong side of it will be dismissed. Counsel, therefore, should become acquainted with the factors the courts consider in determining whether such claims are duplicative and plead their claims accordingly.
The case: Meserole Hub, LLC v. Solomon Rosenzweig, Index No. 2023-02132 (2d Dep’t Jan. 15, 2025)
In 2014, the plaintiff and the defendant entered into a contract, by which the defendant was to provide services to the plaintiff in connection with the development of property in Brooklyn. The plaintiff eventually commenced a lawsuit against the defendant and its principal, and filed the amended complaint, asserting causes of action for breach of contract and gross negligence. The defendants moved pursuant to CPLR 3211(a) to dismiss the gross negligence claim as duplicative of the breach of contract claim. The Supreme Court, Kings County, granted the defendants’ motion, and the plaintiff appealed.
On appeal, the Second Department affirmed the Supreme Court’s decision, relying on the well-established principle that a simple breach of contract will not be considered a tort unless a legal duty independent of the contract itself has been violated. The Second Department also delineated the factors the court evaluates in determining whether claims are duplicative: (1) the nature of the injury, (2) how the injury occurred, and (3) the harm it caused. Applying these factors to the circumstances at issue, the court found that the amended complaint did not allege facts that would give rise to a duty owed to the plaintiff independent of the duty imposed by the parties’ contract and that the plaintiff was essentially seeking, through its tort claim, the contractual benefit of its bargain. The injury alleged was economic in nature and did not occur as a result of negligence, but rather the defendants’ alleged failure to perform under the contract. Put another way, there was no injury alleged in connection with the negligence claim that differed from the injury claimed in connection with the plaintiff’s breach of contract claim.
Takeaway:
Litigation counsel should think critically about their kitchen-sink complaint before filing to ensure they do not invite motion practice and the dismissal of claims as duplicative. In particular, where there is a contract governing the parties’ relationship, counsel should consider whether they can plead a tort claim that is independent from an asserted contract claim. To survive dismissal, a tort claim cannot simply restate a breach of contract claim using tort lingo but must instead demonstrate the existence of a duty, breach and damages outside of the contractual obligations.