Lucariello v. Clayton D. Masonry Contracting, Inc.

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred by not dismissing plaintiffs cause of action for intentional tort, as well as plaintiffs claim for punitive damages. Plaintiffs complaint alleging breach of contract does not allege a breach of a duty separate and distinct from the breach of contract; therefore, the cause of action in tort should be dismissed (Charles v Onondaga Community Coll., 69 AD2d 144, 148, appeal dismissed 48 NY2d 650; see also, Wegman v Dairylea Coop., 50 AD2d 108, 112, lv…