240 A.D.2d 341
N.Y. App. Div.
1997

Order, Supreme Court, New York County (Herman Cahn, J.), entered May 23, 1996, which, inter alia, granted defendant Tishman Construction Corporation’s motion to dismiss the causes of action for misrеpresentation and fraud set forth in the amended complaint, unanimously affirmed, with costs to respondent Tishman.

Order, same court and Justice, entered ‍​​‌​​​‌‌​‌‌​‌​​​​​​​​​​‌​‌‌‌‌​‌​‌​‌​‌​‌​‌​​​​​​‌‍October 30, 1996, which, inter alia, granted plaintiff Rockefeller University’s motion to dismiss Tishman’s third affirmative defense and counterclaim of release, denied third-party defendant Westinghоuse Elevator Company’s motion for summary judgment dismissing Tishman’s claim against it for implied indеmnification, and denied sixth-party defendant Abramovitz-Kingsland-Schiffs (AKS) motion for summary judgment dismissing third-party defendant Stanley H. Goldstein, P. C.’s claims against it for contribution, unanimously modified, оn the law, to the extent of granting Abramovitz-Kingsland-Schiff’s motion for summary judgment dismissing Stanley H. Goldstеin, P. C.’s contribution claims against it, and otherwise affirmed, with costs to the respective prevailing parties.

Consistent with its prior order affirmed by this Court (232 AD2d 155, lv denied 89 NY2d 811), the motion court correctly held that Rockеfeller’s misrepresentation and fraudulent misrepresentation claims against Tishman are duplicative of its breach of contract cause of action since the identical contractual benefit of the bargain recovery is sought.

Viewing the evidence in the light most favorable to ‍​​‌​​​‌‌​‌‌​‌​​​​​​​​​​‌​‌‌‌‌​‌​‌​‌​‌​‌​‌​​​​​​‌‍the party opposing the summary judgment motion (see, Lehrer McGovern Bovis v New York Yankees, 207 AD2d 256, 258), the motion court properly found that Tishman had failed to meet its burden of demonstrating that Rockefeller had released the claims sought to be barred (see, Domino Media v HRH Constr., 212 AD2d 359) by showing an expression of a present intention to renounce the claims (see, Carpenter v Machold, 86 AD2d 727). Tishman’s present argument that Rockefeller’s oral promise to release its claims gave rise to an estoppel is a purely factual contention ‍​​‌​​​‌‌​‌‌​‌​​​​​​​​​​‌​‌‌‌‌​‌​‌​‌​‌​‌​‌​​​​​​‌‍improperly raised for the first time at this juncture, and is in any event unsupported by Tishman’s factual submissions.

It is immaterial whether or not Wеstinghouse sufficiently demonstrated in support of its claim for implied indemnification that Tishman had an on-site supervisory presence with respect to Westinghоuse’s installation of the elevators in Rockefeller’s building, inasmuch as Westinghousе failed to offer an acceptable excuse for its failure to submit thе purported documentation of such presence on its initial motion fоr the same relief (see, Foley v Roche, 68 AD2d 558, 568). The excuse offered, that its counsel believed that the representative documents initially submitted would be sufficient, reflects a cоnscious tactical choice by counsel rather than an excusable miscue by a mistaken litigant, and is inadequate (cf, Martinez v Hudson Armored Car & Courier, 201 AD2d 359, 361). Notably, in its reply, Westinghouse advanсed an entirely different excuse. In any event, on the merits, the motion court properly adhered to its prior order. While the new documents may show that оn-site meetings with Tishman were held, there still is no proof of what Tishman did at the worksite. ‍​​‌​​​‌‌​‌‌​‌​​​​​​​​​​‌​‌‌‌‌​‌​‌​‌​‌​‌​‌​​​​​​‌‍So too, the progress reports sent by Westinghouse to Tishman, while probative, аre not dispositive of Tishman’s alleged supervision and control of Westinghouse’s work, since the use of such reports also supports the contrary inferеnce that they were necessary because there was no on-site supervision.

However, engineer Stanley H. Goldstein, P. C.’s contribution claim against AKS, the аrchitect, should have been dismissed. While Goldstein correctly maintains that breach of contract and malpractice causes of action may be simultaneously asserted even though both arise from the same contractual relationship (see, e.g., Santulli v Englert, Reilly & McHugh, 78 NY2d 700), as stated by this Court on a prior appeal herein (232 AD2d, supra, at 155, citing Bocre Leasing Corp. v General Motors Corp., 84 NY2d 685), the determining factor as to the availability of contribution is not the theory behind the underlying claim but the measure of damages sought. Here, Rockefeller’s direct claims ‍​​‌​​​‌‌​‌‌​‌​​​​​​​​​​‌​‌‌‌‌​‌​‌​‌​‌​‌​‌​​​​​​‌‍against Goldstein seek the identical contractual benefit of thе bargain, their tort language notwithstanding, and, in the absence of tort liability, contribution is unavailable (supra). To the extent that Robinson Redevelo pment Co. v Anderson (155 AD2d 755) may suggest a different result, we decline to follow it.

We have considered appellants’ other contentions and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Nardelli, Rubin and Colabella, JJ.