Divorce in wealthy families can be expensive. Division of significant assets, using teams of lawyers can quickly add up. Kaufman v Boies Schiller Flexner, LLP 2021 NY Slip Op 31340(U) April 22, 2021 Supreme Court, New York County Docket Number: 154149/2018 Judge: James E. d’Auguste not only cost a lot, it spawned multiple other litigations as well. This case has a good discussion of the elements of breach of contact claims in a legal malpractice setting.
“The breach of contract cause of action is predicated upon defendants’ alleged overbilling practices. According to the complaint, “critical errors, in violation of the terms of the relevant retainer agreements” resulted in substantial overbilling, and defendants charged “[p]laintiff for services that were unnecessary, duplicative or wasteful” (NYSCEF Doc No. 66, ¶¶ 1 and 50).
To sustain a cause of action for breach of contract, the plaintiff must prove the existence of a contract, the plaintiff’s performance, the defendant’s breach, and damages (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). “[A] cause of action for breach of contract may be maintained against an attorney ‘only where the attorney makes an express promise … to obtain a specific result and fails to do so’” (Aglira v Julien & Schlesinger, 214 AD2d 178, 185 [1st Dept 2004], quoting Pacesetter Communications Corp. v Solin & Breindel, 150
AD2d 232, 236 [1st Dept 1989], lv dismissed 74 NY2d 892 ; accord Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], lv dismissed and denied 88 NY2d 952 ).
Applying these principles, the complaint fails to adequately plead a breach of contract claim. First, plaintiff fails to set forth the terms of the BSF Retainer or the BRIR Retainer in the complaint that defendants allegedly breached (see Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 [1st Dept 2015] [dismissing the defendant client’s counterclaim for breach of contract because the defendant failed to identify the specific provision of the retainer in which the plaintiff law firm promised to produce a specific result]; Steiner v Lazzaro & Gregory, 271 AD2d 596, 597 [2d Dept 2000] [dismissing a cause of action for breach of contract where the complaint failed to set forth the terms of the retainer agreement]). Second, a close examination of both retainer agreements reveals that defendants did not commit to obtaining a specific result or outcome for plaintiff in the Divorce Proceeding. ”
“Generally, where a breach of contract claim arises out of the same facts and seeks the same or similar damages as a legal malpractice claim, the contract claim must be dismissed (see Courtney v McDonald, 176 AD3d 645, 645-646 [1st Dept 2019]; Roth v Ostrer, 161 AD3d 433, 435 [1st Dept 2018]). That said, a breach of contract claim premised upon the assertion that the “defendants overbilled … and performed unnecessary services … is not duplicative of the legal
malpractice claim” (Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]). “The former claim, unlike the latter claim, does not speak to the quality of defendants’ work” (id.). Hence, the plaintiff must “reasonably allege that the fee bore no rational relationship to the product delivered” (Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). Here, plaintiff’s opposition largely consists of complaints about the quality of defendants’
work which then led to the purported overbilling. As discussed earlier, complaints about overbilling based on the quality of an attorney’s work cannot support a breach of contract claim (see Ullmann-Schneider, 121 AD3d at 416). Thus, defendants’ motions to dismiss the first cause of action for breach of contract are granted, and the first cause of action is dismissed. ”