The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
MEMORANDUM-DECISION AND ORDER
Presently before the Court is Third-Party Defendant Metcalf & Eddy's ("M & E") Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(6), the Third-Party Complaint brought by Third-Party Plaintiff Charles A. Manganaro Consulting Engineers, P.C. ("Manganaro") on the grounds that Manganaro has not stated a proper claim for contribution and/or indemnification from M & E.
On July 17, 2001, Plaintiff City of Kingston Water Department ("Kingston") filed a Complaint in New York Supreme Court, Ulster County, asserting four causes of action against Manganaro. On August 22, 2001, Manganaro removed the action to this Court on diversity grounds. In its Complaint, Kingston alleges that it retained Manganaro to provide design services in connection with the renovation of a filter plant in Ulster County and that it renovated the filter plant in accordance with the plans submitted by Manganaro. (Complaint, attached as Exhibit 1 to Notice of Removal, Docket No. 1). Kingston further alleges that the filters do not operate properly.
The first cause of action asserted in Kingston's Complaint alleges that Manganaro negligently prepared and submitted faulty designs and specifications. The second cause of action claims that Manganaro breached its contract with Kingston. The third cause of action alleges that Manganaro breached its warranty to Kingston that the plans and specifications were appropriate for Kingston's needs. Finally, in its fourth cause of action, Kingston alleges that Manganaro committed malpractice by failing to use "proper engineering abilities and deviat[ing] from generally accepted engineering practices and standards." (Complaint ¶ 43.)
On September 6, 2001, Manganaro filed a Third-Party Complaint against M & E alleging that "M & E was performing or was contractually required to perform work at the plaintiff's water treatment plant including design and construction at all times alleged in the complaint." (Third-Party Complaint ¶ 7, Docket No. 3). Manganaro asserts a single cause of action for contribution and/or indemnification from M & E for damages for which Manganaro is found liable. M & E moved to dismiss the Third-Party Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6).
A. Standard for Motion to Dismiss
A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) must be denied "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In assessing the sufficiency of a pleading, the Court must "assume all well-pleaded factual allegations to be true, and . . . view all reasonable inferences that can be drawn from such allegations in the light most favorable to the plaintiff." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). Consideration is limited to the complaint, written instruments that are attached to the complaint as exhibits, statements or documents that are incorporated in the complaint by reference, and documents on which the complaint heavily relies. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations omitted).
In support of its motion, M & E refers the Court to affidavits and a copy of its contract with Kingston. Likewise, Manganaro submitted an affidavit with its Memorandum of Law. The Court may not rely on this material when deciding M & E's 12(b)(6) motion. See Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) ("[A] district court errs when it `considers affidavits and exhibits submitted by' defendants. . . . in ruling on a 12(b)(6) motion.") (quoting Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991)). Rather, the Court must either "`exclude the additional material and decide the motion on the complaint alone' or `convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.'" Id. (quoting Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988)). The Court elects the former option and will not consider the affidavits and exhibits submitted by the parties.
B. Manganaro's Contribution Claim
The New York State contribution statute provides that "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought." N.Y. C.P.L.R. 1401; Board of Education v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 23 (1987) ("Sargent"). CPLR 1401 may not be invoked to apportion liability arising solely from breach of contract. Sargent, 71 N.Y.2d at 28. Rather, "the existence of some form of tort liability is a prerequisite to application of the statute." Id. Manganaro's contribution claim is therefore proper only if Manganaro is potentially liable to Kingston for a claim sounding in tort. Kingston's second and third causes of action-breach of contract and breach of warranty, respectively-are contract claims.*fn1 The Court will therefore limit its discussion of potential tort liability to Kingston's first and fourth causes of action.
Seizing on Kingston's assertion that Manganaro acted "negligently," Manganaro argues that "[t]he plain language of the first cause of action establishes beyond question that Kingston's claims against Manganaro are negligence claims." (Manganaro's Memorandum of Law in Opposition to M & E's Motion to Dismiss at 10.) However, Kingston may not transform a contract action into a tort action by simply claiming that Manganaro acted negligently. See Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 390 (1987) ("Merely charging a breach of a `duty of due care', employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim."); Dormitory Authority v. Caudill Rowlett Scott, 160 A.D.2d 179, 180 (1st Dept. 1990) ("Although [plaintiff's] second cause of action claims negligence in performing the design services and a failure to `exercise reasonable care in designing the project', it does not transform a breach of contract into a tort.") (citation omitted); Niagra Mohawk Power Corp. v. Stone & Webster Engineering Corp., 725 F. Supp. 656, 664 (N.D.N.Y. 1989) (holding that under New York law plaintiff cannot bring a tort claim that merely uses tort language to describe a breach of contract claim).
The plaintiff in Clark-Fitzpatrick Inc. was awarded a construction contract by the defendant, Long Island Rail Road ("LIRR"). The plaintiff claimed that after it began construction it learned that the engineering design was flawed and that LIRR had failed to obtain the necessary property rights and move utility lines that interfered with the project. Clark-Fitzpatrick, Inc., 70 N.Y.2d at 385. The plaintiff nevertheless completed the construction project and sued LIRR for damages arising from the various problems it encountered in the course of construction, alleging breach of contract, quasi contract, fraud, gross negligence, and negligence. Id. at 385-6. LIRR moved to dismiss, inter alia, the negligence causes of action. Id. at 386. The New York Court of Appeals stated that "[i]t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract ...