Summary
finding that the plaintiff's breach of contract claim was properly dismissed as it was plainly based on the same facts as his legal malpractice claim
Summary of this case from Boshart v. KassimirOpinion
8761 Index 153956/16
03-21-2019
Orazio PETITO, Plaintiff–Appellant, v. LAW OFFICES OF BART J. EAGLE, PLLC, et al., Defendants–Respondents, Bart J. Eagle, Esq., Defendant.
Andrew Lavoott Bluestone, New York, for appellant. Kaufman Dolowich & Voluck, LLP, Woodbury (Brett A. Scher of counsel), for respondents.
Andrew Lavoott Bluestone, New York, for appellant.
Kaufman Dolowich & Voluck, LLP, Woodbury (Brett A. Scher of counsel), for respondents.
Friedman, J.P., Renwick, Webber, Kahn, Kern, JJ.
The motion court properly dismissed plaintiff's breach of contract and breach of fiduciary duty causes of action ( Rivas v. Raymond Schwartzberg & Assoc., PLLC, 52 A.D.3d 401, 401, 861 N.Y.S.2d 313 [1st Dept. 2008] ; Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271, 780 N.Y.S.2d 593 [1st Dept. 2004] ). Plaintiff's breach of contract cause of action was plainly based on the same facts as his legal malpractice cause of action. Plaintiff repeatedly referenced defendants' alleged negligence in support of his breach of contract cause of action, provided no specific allegations to support his improper billing claims, and alleged that he was damaged by paying defendants' bills in light of their negligence. Although included in his summons with notice, plaintiff failed to plead a cause of action for breach of fiduciary duty in his complaint. In any event, plaintiff did not allege any conflict of interest in defendants' representation which amounted to a substantial factor in his loss ( Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 10, 865 N.Y.S.2d 14 [1st Dept. 2008] ).
As the documentary evidence submitted did not utterly refute plaintiff's allegations of proximate causation, the malpractice claim against defendant Law Offices of Bart J. Eagle, PLLC is reinstated. Nevertheless, it did establish that plaintiff's legal malpractice cause of action was barred by the statute of limitations as against Fischer Porter Thomas & Reinfeld, P.C. and Joel Reinfeld, Esq. ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ; McCoy v. Feinman, 99 N.Y.2d 295, 300–301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ). The continuing representation doctrine does not apply.
We have considered the remaining arguments and find them unavailing.