Tort or Contract? Legal malpractice is really neither of the two bi-polar options; it is a melding of both. Privity of contact is required in a tort setting. Statutes of limitation for contract are calculated on a tort scale. The list goes on and on.
Willig v Danzig, Fishman & Decea 2018 NY Slip Op 05384 Decided on July 19, 2018 Appellate Division, Third Department is an example of how the thought process can become hopelessly intertwined.
“Initially, we agree with defendant that because Supreme Court actually addressed the merits of defendant’s motion, we deem that the court granted reargument and then adhered to its original decision; therefore this appeal is properly before us (see HSBC Mtge. Corp. [USA] v Johnston, 145 AD3d 1240, 1240 ; Matter of Barnes v Venettozzi, 135 AD3d 1250, 1251 ; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1184-1185 , lv denied 25 NY3d 912 ). We recognize that a party may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action if such a cause of action is supported by the party’s submissions (see CPLR 3018 [b]; Balashanskaya v Polymed Community Care Ctr., P.C., 122 AD3d 558, 559 ; Drago v Spadafora, 94 AD3d 1041, 1042 ; Sheils v County of Fulton, 14 AD3d 919, 921 , lv denied 4 NY3d 711 ). The record shows that Sisca signed the retainer agreement with decedent on behalf of defendant, which agreement identified Peter F. Sisca and Thomas Decea, the latter of whom was one of defendant’s named partners, as the attorneys primarily “responsible for this engagement.” While defendant maintains that its contract with Sisca was inherent in its cocounsel relationship under the retainer agreement, the third-party complaint does not include a cause of action for breach of contract, and defendant actually characterizes its breach of fiduciary duty claim against Sisca as a tort. Moreover, the third-party complaint expressly identifies the retainer agreement between decedent and defendant as the “contract.” As such, we find no abuse of discretion in Supreme Court’s determination that a three-year limitations period applies to defendant’s breach of fiduciary duty claim, which seeks purely monetary relief (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 ).”