Opinion
May 6, 1996
Appeal from the Supreme Court, Dutchess County (Hillery, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the plaintiff's motion for summary judgment dismissing the counterclaim of the defendant Marko Skrelja. The "Forebearance and Deferral Agreement" that Skrelja signed, which stated, in pertinent part, "there are no defenses, offsets or counterclaims of any nature to the Note or the Mortgage" did not waive Skrelja's right to bring an action in tort for breach of fiduciary duty ( see, Davis v. Dime Sav. Bank, 158 A.D.2d 50). "[T]he same conduct which constitutes a breach of a contractual obligation may also constitute the breach of a duty arising out of the contract relationship which is independent of the contract itself" ( Davis v. Dime Sav. Bank, supra, at 52; see, Mandelblatt v. Devon Stores, 132 A.D.2d 162). Altman, J.P., Hart, Goldstein and McGinity, JJ., concur.