Opinion
570225/07.
Decided January 29, 2008.
Defendants appeal from an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered January 29, 2007, which denied their motion to dismiss the complaint.
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ.
Order (Geoffrey D. Wright, J.), entered January 29, 2007, modified to the extent of granting defendants' motion to dismiss plaintiff's second cause of action for breach of contract, and otherwise affirmed, without costs.
Plaintiff's first cause of action alleging legal malpractice was sufficiently pleaded to survive defendants' CPLR 3211(a)(7) motion to dismiss. The alleged facts if accepted as true, accorded the benefit of every possible favorable inference, and evaluated only as to whether they fit within any cognizable legal theory sufficiently stated plaintiff's claim that but for defendants' negligence in their representation of plaintiff in a Worker's Compensation proceeding, she would have prevailed on the underlying claims ( see e.g. Gamiel v Curtis Riess-Curtis, P.C., 16 AD3d 140).
However, since plaintiff's second cause of action for breach of contract is premised on defendants' alleged failure to properly represent plaintiff in connection with her Worker's Compensation claim, the breach of contract cause of action is dismissed as duplicative of the malpractice cause of action ( see Schwartz v Olshan Grundman Frome Rosenzweig, 302 AD2d 193, 199).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.