Claim for Overbilling Not Duplicative of Legal Malpractice

Very common to legal malpractice litigation is a dismissal of contract causes of action as duplicative of the negligence claim.  Postiglione v Castro  2014 NY Slip Op 05527
Decided on July 30, 2014  Appellate Division, Second Department is an example of how a contract cause of action survives.

"In the order appealed from dated March 21, 2012, the Supreme Court granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint in its entirety. As relevant to this appeal, the Supreme Court granted those branches of the defendants' motion which were to dismiss the breach of contract and fraud causes of action as duplicative of the legal malpractice cause of action, which it dismissed as barred by the statute of limitations.

The plaintiff moved pursuant to CPLR 5015(a) to vacate the order dated March 21, 2012, "in the interests of justice," and pursuant to CPLR 3025(b) for leave to amend the complaint to assert only two causes of action—one alleging breach of contract and one alleging fraud. In the order appealed from dated September 13, 2012, the Supreme Court denied the plaintiff's motion.

As a general rule, where a cause of action alleging breach of contract or fraud arises from the same facts as a legal malpractice cause of action and does not allege distinct damages, the breach of contract or fraud cause of action must be dismissed as duplicative of the legal malpractice cause of action (see Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1020; Kvetnaya v Tylo, 49 AD3d 608; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436, 437; Town of Wallkill v Rosenstein, 40 AD3d 972; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749; Daniels v Lebit, 299 AD2d 310). Here, the plaintiff's breach of contract cause of action makes no claim that the defendants provided inadequate representation in his legal matters. Rather, the plaintiff claims, among other things, that the defendants over-billed him and took money from his escrow account without his permission, in violation of the retainer agreement. Under these circumstances, the plaintiff's breach of contract cause of action was not duplicative of the legal malpractice cause of action, and should not have been dismissed on that basis (see Loria v Cerniglia, 69 AD3d 583; Boglia v Greenberg, 63 AD3d 973, 976; Ideal Steel Supply Corp. v Beil, 55 AD3d 544, 545-546).

Similarly, the cause of action alleging fraud makes no claim of inadequate or negligent legal representation. Rather, the fraud cause of action essentially alleges that the defendants made material misrepresentations concerning the money that the plaintiff owed them. Thus, the fraud cause of action was not duplicative of the legal malpractice cause of action and should not have been dismissed on that ground."

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