Plaintiff makes a loan using an attorney.  The attorney is hired to make sure the loan is collateralized and if not paid, there will be a security interest in other property.  The law firm fails to file the correct lien papers, and the loan is lost.  While this might be legal malpractice, is it also a breach of contract or a breach of fiduciary duty.  Are damages which seek disgorgement of legal fees different from damages which seek the amount of the lost loans?

In Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC   2015 NY Slip Op 31080(U)   June 16, 2015  Supreme Court, New York County  Docket Number: 653145/2014,   Judge Nancy M. Bannon did not think so.

“Gilbride further contends that Genesis’ second cause of action for breach of contract, third cause of action for negligence, fourth cause of action for disgorgement, and fifth cause of action for breach of fiduciary duty are merely duplicative of the cause of action for legal malpractice as to all three loans involved in this action. The court notes that, had the legal malpractice cause of action been dismissed as time-barred, these causes of action would have been dismissed as well pursuant to CPLR 214(6). See Johnson v Proskauer Rose LLP, -AD3d-, 2015 WL 1932165 (1st Dept. April 30, 2015). They are nonetheless subject to dismissal, as they are duplicative of that cause of action. “The key to determining whether a claim is duplicative of one for malpractice is discerning the essence of the each claim.” Johnson v Proskauer Rose LLP, supra at *5. These causes of action are essentially identical to the malpractice claim in that they arose from the same facts and do not allege distinct damages. The claims are not “sufficiently distinct from one another” to withstand a motion to dismiss. kt_; see Matter of R.M. Kliment & Frances Halsband. Architects [McKinsey & Co .. lnc.J, 3 NY3d 538 (2004). Indeed, here, Genesis’ causes of action for breach of contract, negligence, and breach of fiduciary duty are predicated on the same alleged conduct giving rise to its legal malpractice cause of action. Genesis does not allege any facts independent of those alleged in connection with the legal malpractice cause of action which would support these causes of action. See Schwartz v Leaf. Salzman. Manganelli. Pfiel. & Tendler. LLP, 123 AD3d 901 (2″d Dept. 2014); lnkine Pharmaceutical Company. Inc. v Coleman, 305 AD2d 151 (1st Dept. 2003); Mecca v Shang, 258 AD2d 569 (2″d Dept. 1999). Additionally, Genesis’ cause of action for disgorgement is, essentially, a claim for monetary damages based on Gilbride’s alleged malpractice and, thus, is duplicative of that cause of action. See Betz v Blatt, 116 AD3d 813 (2″d Dept. 2014); Access Point Medical. LLC v Mandell, 106 AD3d 40 (1st Dept. 2013); Thus, Genesis’ second through fifth causes of action for breach of contract, negligence, disgorgement, and breach of fiduciary duty are dismissed. See Schwartz v Leaf. Salzman. Manganelli. Pfiel. & Tendler. LLP, supra; Betz v Blatt, supra; lnkine Pharmaceutical Company. Inc. v Coleman, supra. “