| Hartsko Fin. Servs., LLC v JPMorgan Chase Bank, N.A. |
| 2015 NY Slip Op 00971 |
| Decided on February 5, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 5, 2015
Acosta, J.P., Renwick, Feinman, Clark, Kapnick, JJ.
14155 653251/12
v
JPMorgan Chase Bank, N.A., Defendant-Respondent.
The Law Offices of Edward T. Joyce & Associates, P.C., Chicago, IL (Edward T. Joyce of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellant.
Levi Lubarsky & Feigenbaum LLP, New York (Andrea Likwornik Weiss of counsel), for respondent.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 5, 2013, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the first cause of action pursuant to CPLR 3211(a)(1) and (7), and denied plaintiff's motion for leave to amend, unanimously affirmed, without costs.
Whether the first cause of action is denominated negligence or gross negligence, it was correctly dismissed because defendant had no duty to plaintiff independent of the contract formed when the account was opened (Stella Flour & Feed Corp. v National City Bank of N.Y., 285 App Div 182 [1st Dept 1954], affd 308 NY 1023 [1955]).
Plaintiff is correct that the motion court should not have denied its request for leave to amend on the ground that the request was belated (see e.g. Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007]). However, denial was proper because plaintiff failed to demonstrate that it has a tort claim independent of a contract claim (see e.g. Sabo v Alan B. Brill, P.C., 25 AD3d 420 [1st Dept 2006]).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 5, 2015
CLERK