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Justice Scarpulla Click here to see Judicial Profile http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=120492 IN THIS action to recover damages for breach of contract and negligence, defendant contractors moved for dismissal of the complaint. Defendants were to remove hardwood floors in a school gym. Upon removal, a “lightweight cementitious fill material was exposed,” but defendants did not stop the work, did not report the material’s discovery or test the material, leaving the floor exposed. Plaintiff Board of Education sampled the material, which tested positive for asbestos. The board began this action alleging breach of contract and negligence, contending defendants assumed a duty to exercise reasonable care. The court stated the nature of work had a significant impact on the public interest of preserving the safety of schoolchildren, which could give rise to a duty of reasonable care independent of contractual obligations. Thus, it denied dismissal of the negligence causes of action. The court also found the board sufficiently pleaded a breach of contract claim based on the parties’ contract setting forth defendant Iannelli’s contractual obligations. It found Iannelli had not submitted documentary evidence conclusively establishing a defense to the breach claim and thus denied defendants’ motions for dismissal.

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