Duane Reade--a privately held drug store chain with over 230 stores in the Metropolitan New York City area--sued one of its landlords for $500,000 in damages caused by a sprinkler-pipe burst. In its complaint, Duane Reade asserted a "fifth cause of action" for contract breach and a "sixth cause of action" for negligence based upon the identical allegations that the landlord neglected "'to maintain in good working order and repair...plumbing...and ventilating systems' on the premises, to maintain heat, and to install and maintain a flow alarm on the sprinkler system."
On motion in Duane Reade v. SL Green Operating Partnership, LP, the New York County Supreme Court dismissed the store's negligence claim as "duplicative" of the contract-breach claim. On appeal, the Appellate Division, First Department, reversed.
While a tort claim based on the same facts as a contract claim may be viewed as "mere duplication" and is dismissible, there are instances when the negligence component of the case may remain viable and be separately maintainable. This is particularly true when the purported perpetrator of the misconduct has disregarded statutory protections intended to safeguard the "general public." Finding that Duane Reade's negligence claims were predicated on violations of the owner's statutory duties to "maintain the premises in reasonably safe condition and to protect the components of the sprinkler system from freezing temperatures," rather than upon breaches of the parties' lease, the appellate court permitted both the negligence and contract claims to survive.
Looks like this particular landlord received an icy reception from the Appellate Division, wouldn't you agree?
For a copy of the Appellate Division's decision in Duane Reade v. SL Green Operating Partnership, LP, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_04512.htm