The trilogy of claims in a legal-professional negligence setting are legal malpractice, breach of contract and breach of fiduciary duty. Claims are duplicitive if they arise from the same set of facts and claim the same or similar damages. We think that a legal malpractice claim which seeks the value of a lost asset or a lost claim is different from a breach of contract claim which seeks damages derived from the legal billings (not a lost asset or a lost claim) and that a breach of fiduciary duty which seeks damages derived from a conflict of interest or excessive billing are all non-duplicitive. Courts often disagree, and in effect, seek to limit the field.
Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C. 2018 NY Slip Op 01456 Decided on March 7, 2018 Appellate Division, Second Department is an example.
“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (id. at 442).
Here, viewing the complaint in the light most favorable to KWI, it sufficiently alleged that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in negotiating the 2007 settlement agreement, and that the defendant’s breach of this duty proximately caused KWI to sustain actual and ascertainable damages (see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437). Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice.
However, the Supreme Court should have granted those branches of the defendant’s motion which were to dismiss the second and third causes of action, which were, respectively, to recover damages for negligent misrepresentation and breach of contract, as duplicative of the legal malpractice cause of action. Those causes of action were duplicative of the legal malpractice cause of action because they arose from the same operative facts and did not seek distinct and different damages (see Thompsen v Baier, 84 AD3d 1062, 1064; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 199; Maiolini v McAdams & Fallon, P.C., 61 AD3d 644, 645; Gelfand v Oliver, 29 AD3d 736; Shivers v Siegel, 11 AD3d 447).”