Estate brings action against its attorneys, who successfully move to dismiss in Surrogate’s Court on the basis that the action was not "brought during the administration of an estate."  Does this doom the legal malpractice and overbilling suit?  Is an overbilling suit duplicitive of the legal malpractice claims.  The answer is "no" in both instances.

Ullmann-Schneider v Lacher & Lovell-Taylor, P.C.  2014 NY Slip Op 06665  Decided on October 2, 2014  Appellate Division, First Department  tells us that when the case is timely brought in Surrogate’s Court, it may be re-commenced in Supreme Court.

"In this action arising from defendants’ legal representation of plaintiff’s decedent, in connection with the estate accounting proceedings of decedent’s deceased mother and a trust created under her will, the motion court properly found that, to the extent the claims herein are governed by a three-year statute of limitations, this action is timely, having been commenced within six months after termination of a timely commenced proceeding in Surrogate’s Court (see CPLR 205[a]). Plaintiffs’ commencement of the Surrogate’s Court proceeding in connection with decedent’s mother’s estate, based on the same series of events involved here, was timely made within three years of decedent’s death. We note that the prior proceeding was dismissed on the ground that it was not brought "during the administration of an estate" (SCPA 2110), "without prejudice to renewal in the appropriate forum." Since SCPA 2110 merely served as the attempted vehicle for plaintiffs to pursue their claims, and did not create those claims, the requirement that the petition be brought during an estate’s administration was not a condition precedent affecting plaintiffs’ right to bring the underlying claims in Supreme Court (see Matter of Morris Invs. v Commissioner of Fin. of City of N.Y., 69 NY2d 933, 935-936 [1987]).

As the motion court found, the breach of contract claim, which asserts, inter alia, that defendants overbilled them and performed unnecessary services, is not duplicative of the legal malpractice claim. The former claim, unlike the latter claim,does not speak to the quality of defendants’ work (see Cherry Hill Mkt. Corp. v Cozen O’Connor P.C., 118 AD3d 514 [1st Dept 2014]). However, the claims for breach of the implied covenant [*2]of good faith and fair dealing, breach of fiduciary duty, and unjust enrichment, which are based on the same allegations and seek the same damages as the breach of contract and legal malpractice claims should have been dismissed as duplicative (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600 [1st Dept 2014])."