There are many differences between contract liability and tort liability.  One difference is the scope of persons to whom a duty applies.  In contract the question of privity looms over every analysis; in tort, it is almost the entire world.  Another difference is the measurement of damages.  In contract damages are generally related to the contractual duty, in tort, one who is injured is due that compensation which is needed to make whole.

Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp.[127 AD3d 479]   2015 NY Slip Op 03048   April 9, 2015  Appellate Division, First Department discusses whether a tort claim for professional negligence is necessarily duplicitive of a contract claim for professional negligence. It is not, but the Court nevertheless affirmed dismissal.

“The second cause of action, for fraud/negligent misrepresentation, is not duplicative of defendant/third-party plaintiff ESF’s breach of contract counterclaim against plaintiff/third-party defendant Ferro Fabricators, Inc., since it does not allege that Ferro entered into a contract intending not to perform (see MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 293 [1st Dept 2011]). However, the claim must still be dismissed for failure to plead with requisite particularity pursuant to CPLR 3016 (b) (see e.g. Gregor v Rossi, 120 AD3d 447, 447 [1st Dept 2014] [holding that claims were not pleaded with requisite particularity because the words used by the defendants and the date of the alleged false representations were not set forth]). Here, the third-party complaint only contains general allegations as to the alleged [*2]misrepresentations and virtually no information as to when and by whom these representations were made.

Similarly, third-party plaintiffs’ fourth cause of action, for negligence/professional malpractice, is not duplicative of ESF’s breach of contract counterclaim, because “[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties’ relationship [and] [p]rofessionals . . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties” (Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992]). However, although the third-party complaint alleges that Ferro and third-party defendant Gregory Dec owed a duty to perform engineering services in a professional manner and without negligence, it fails to state nonconclusory allegations as to how the third-party defendants negligently discharged the alleged duties and what damage the alleged failure caused (cf. 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 82-83 [1st Dept 1999]).