From Casetext: Smarter Legal Research

Brown v. Brown

Appellate Division of the Supreme Court of New York, First Department
Nov 4, 2004
12 A.D.3d 176 (N.Y. App. Div. 2004)

Summary

holding that plaintiffs fraud claim is "precluded by the fact that a simple breach of contract claim may not be considered a tort unless a legal duty independent of the contract — i.e., one arising out of circumstances extraneous to, and not constituting elements of, the contract itself — has been violated"

Summary of this case from Guilbert v. Gardner

Opinion

4522

November 4, 2004.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 20, 2003, which granted defendant's motion to dismiss the first, second, third, fourth, fifth, sixth, eighth and ninth causes of action of the complaint, unanimously affirmed, with costs.

Before: Mazzarelli, J.P., Williams, Friedman, Gonzalez and Catterson, JJ.


In this dispute between plaintiff and his father concerning an alleged breach of certain oral agreements, as well as defendant's separation agreement in connection with his divorce from plaintiff's mother, enforcement of the purported oral promises was barred by the statute of frauds (EPTL 13-2.1 [a] [2]; General Obligations Law § 5-701 [a] [1]; see Dombrowski v. Somers, 41 NY2d 858). As for the separation agreement, even assuming that plaintiff, as a beneficiary, would have standing to enforce a contract to which he was not a party, an agreement to make a will generally is enforceable only after the death of the promisor ( see Rubin v. Irving Trust Co., 305 NY 288, 298). Plaintiff is thus precluded from maintaining an action predicated, in effect, on an anticipatory breach of a contract to make a testamentary provision for him during his father's lifetime. "Beneficiaries enjoy only expectancy interests and not vested legal rights" ( Blackmon v. Estate of Battcock, 78 NY2d 735, 739).

Plaintiff's allegations of breach of contract are not salvaged by his assertion of partial performance ( see Stephen Pevner, Inc. v. Ensler, 309 AD2d 722), and his claims for promissory estoppel, unjust enrichment and fraud are precluded by the fact that a simple breach of contract claim may not be considered a tort unless a legal duty independent of the contract — i.e., one arising out of circumstances extraneous to, and not constituting elements of, the contract itself — has been violated ( Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 389). The requirement of a writing may not be circumvented by recasting the action as one seeking damages in tort ( see J.E. Capital v. Karp Family Assoc., 285 AD2d 361, 362). In any event, the tort claims were merely duplicative of the insufficiently pleaded breach of contract causes of action herein.

We have considered plaintiff's other arguments and find them unavailing.


Summaries of

Brown v. Brown

Appellate Division of the Supreme Court of New York, First Department
Nov 4, 2004
12 A.D.3d 176 (N.Y. App. Div. 2004)

holding that plaintiffs fraud claim is "precluded by the fact that a simple breach of contract claim may not be considered a tort unless a legal duty independent of the contract — i.e., one arising out of circumstances extraneous to, and not constituting elements of, the contract itself — has been violated"

Summary of this case from Guilbert v. Gardner

holding that "claims for . . . fraud are precluded by the fact that a simple breach of contract claim may not be considered a tort unless a legal duty independent of the contract - i.e., one arising out of circumstances extraneous to, and not constituting elements of, the contract itself - has been violated"

Summary of this case from Kumaran v. Northland Energy Trading, LLC

finding that a breach-of-contract claim cannot justify recovery under tort theories such as promissory estoppel absent proof of legal duty independent of contract

Summary of this case from Sabilia v. Richmond

applying Clark-Fitzpatrick rule to promissory estoppel claim

Summary of this case from Tierney v. Omnicom Group, Inc.

dismissing promissory estoppel claim because plaintiff failed to identify a "legal duty … arising out of circumstances extraneous to, and not constituting elements of, the contract itself"

Summary of this case from Schroeder v. Pinterest Inc.
Case details for

Brown v. Brown

Case Details

Full title:BARRY BROWN, Appellant, v. HIMAN BROWN, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 4, 2004

Citations

12 A.D.3d 176 (N.Y. App. Div. 2004)
785 N.Y.S.2d 417

Citing Cases

Nieves v. Just Energy N.Y. Corp

This Court initially considers the first two contractual causes of action, then the third cause of action…

Nestor v. Putney Twombly Hall & Hirson, LLP

Here, contrary to the plaintiff's contention, California Code of Civil Procedure § 366.3 is a statute of…