Augustus Butera is a photographer whose work was handled by the former MCA Creative Services, which self-immolated some time back.  In Augustus Butera Photography, Inc. v MCA Creative Servs., Inc.2014 NY Slip Op 32974(U) October 21, 2014   Supreme Court, New York County  Docket Number: 651984/11  Judge Nancy M. Bannon gives a primer on the difference between professional negligence and breach of contract.  In this case it appears that Butera received compensation for the use of his photographs and came up short in the final accounting.  He sued for loss of compensation, punitive damages and other claims, and he referenced other law suits against MCA and its principals in support of his claim.

“In this breach of contract action, the plaintiff corporation, Augustus Butera Photography, Inc., seeks, inter alia, to recover unpaid professional fees from defendant MCA Creative Services, a/k/a Marge Casey Associates (“MCA”), its former agent. The complaint includes causes of action for conversion and unjust enrichment and seeks damages of $45,000, punitive damages, an accounting and judgment declaring that the parties had a valid contract which was breached by the defendant. The defendant, who had had a 13-year business relationship with the plaintiff’s principal, the photographer Augustus Butera, answered and asserted a cross-claim seeking damages for tortious interference with prospective business relations. In a third-party action, MCA seeks damages in excess of $150,000 from Augustus Butera, individually, upon the same theory as well as breach of contract for failure to pay contractual commissions. Butera answered and asserted several counterclaims approximating the claims in the complaint. The action was commenced in 2011 and discovery has been ongoing.”

“The plaintiff alleges that the defendant was negligent in its “billing, invoicing and licensing of photographic works” which resulted in a loss to him of professional fees totaling $45,000. To the extent that the plaintiff is attempting to assert a type of “professional malpractice” claim, it provides no factual support or legal authority for doing so and thus states no cognizable tort claim. See Clark-Fitzpatrick, Inc. v Long Island R.R. Co., 70 NY2d 382 (1987); Harrogate House Limited v Jovine, 2 AD3d 108 (1″ Dept. 2003). To the extent the plaintiff is alleging that the defendant failed to meet its obligations under the parties’ agreement, it is duplicative of the breach of contract claim. See Clark-Fitzpatrick Inc. v Long Island R.R. Co., supra; Sebastion Holdings, Inc. v Deutsche Bank, AG., 108 AD3d 433 (1’1 Dept. 2013). The defendant is entitled to summary dismissal of that claim. “