696 N.Y.S.2d 552 | N.Y. App. Div. | 1999
Appeal from an order of the Supreme Court (Lynch, J.), entered October 9, 1998 in Schenectady County, which granted defendant Charles R. Ackerbauer’s motion for summary judgment dismissing the complaint against him.
In 1994, plaintiff entered into a contract to purchase from US Land Acquisition and Development Corporation 77 improved building lots located in the Town of Johnstown, Fulton County. Under the agreement, any claims for breach of contract were to be submitted to arbitration. In 1996, plaintiff commenced this action against defendants, Robert A. Bosman
Inasmuch as defendant owed no duty to plaintiff, the latter cannot assert a claim for negligence against him. Furthermore, a breach of contract may not be considered a tort unless a legal duty independent of the contract itself has been violated (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389); that is, the duty must arise from circumstances outside of, and not constituting elements of, the contract, although it can be connected with and dependent upon the contract (see, id., at 389). Here, defendant was not a party to the contract, and nothing in the record justifies inferring that he owed plaintiff any legal duty.
Plaintiffs related argument that his relationship to defendant was tantamount to that of contractual privity is to no avail, for it is clear from the record that the work performed by defendant was intended to benefit US Land Acquisition only and not plaintiff (see, McNar Indus. v Feibes & Schmitt, Architects, 245 AD2d 993, 994, lv denied 91 NY2d 812). And given the absence of proof that defendant and US Land Acquisition entered into the contract for plaintiffs benefit, his claim to third-party beneficiary status lacks substance (see, Board of Mgrs. v Schorr Bros. Dev. Corp., 182 AD2d 664, 665).
Also untenable is plaintiffs charge that he was induced to
Mikoll, J. P., Crew III, Peters and Mugglin, JJ., concur. Ordered that the order is affirmed, with costs.
Plaintiff has not appealed from a judgment summarily dismissing his complaint against Bosman.