Hartsko Financial Services, LLC v. JPMorgan Chase Bank, N.A.

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 plaintiffs 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 plaintiffs remaining arguments and find them unavailing. Concur — Acosta, J.P., Renwick, Feinman, Clark and Kapnick, JJ.