For the most part, in a legal malpractice setting, claims for Breach of Contract or Fraud are viewed as vestigial hangers-on to the most important part of the animal, the LM claim.  For the most part, that analysis is correct.  The Breach of Contract, or Breach of Fiduciary Duty or Fraud claims are generally restatements of the failure to adhere to a standard, with damages arising from the central loss in the case, whether it is a cause of action, or a contract, etc.

Here, in Stewart v Berger   2016 NY Slip Op 02072  Decided on March 23, 2016   the Appellate Division, Second Department recognizes a truly non-duplicitive claim.  After plaintiff failed to oppose the motion, Supreme Court accepted the excuse (law office failure) but dismissed anyway, on the basis that the dismissed claims were duplicitive.

“The second cause of action sought to recover damages for breach of fiduciary duty. Contrary to the plaintiff’s contention, the Supreme Court properly determined that the three-year limitations period of CPLR 214(6), rather than the six-year limitations period of CPLR 213(1), applied to this cause of action and that it was, therefore, time-barred (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139-140; Elmakies v Sunshine, 113 AD3d 814, 815; cf. Loeuis v Grushin, 126 AD3d 761, 764). Since the plaintiff failed to demonstrate a potentially meritorious opposition to that branch of the defendants’ motion, the Supreme Court properly declined to vacate so much of the June order as directed the dismissal of the second cause of action (see generally Glauber v Ekstein, 133 AD3d at 713; U. Joon Sung v Feng Ue Jin, 127 AD3d 740, 741).

The Supreme Court also properly declined to vacate so much of the June order as directed the dismissal of so much of the complaint as sought punitive damages. Contrary to the plaintiff’s contention, the complaint failed to set forth any facts or allegations to support his contention that the defendants committed a fraud “evincing a high degree of moral turpitude, and demonstrating such wanton dishonesty as to imply a criminal indifference to civil obligations . . . where the conduct [is] aimed at the public generally” (Reads Co., LLC v Katz, 72 AD3d 1054, 1057 [internal quotation marks omitted]; see O’Keefe v Allstate Ins. Co., 90 AD3d 725, 726-727; Flores-King v Encompass Ins. Co., 29 AD3d 627, 627). Accordingly, the plaintiff failed to demonstrate a potentially meritorious opposition to that branch of the defendants’ motion.

However, the Supreme Court erred in declining to vacate so much of the June order as directed the dismissal of the third cause of action, alleging breach of contract, as time-barred. The plaintiff proffered a meritorious opposition to this branch of the defendants’ motion. The third cause of action alleged that the defendants charged the plaintiff excessive fees in violation of the express terms of the parties’ retainer agreement, stating a contract claim subject to the six-year limitations period of CPLR 213(2). Contrary to the defendants’ contention, the three-year limitations period of CPLR 214(6) for legal malpractice claims does not apply here because the plaintiff made no claim that the defendants deviated from accepted standards of legal practice in the handling of his legal matters (see Postiglione v Castro, 119 AD3d 920, 922; Loria v Cerniglia, 69 AD3d 583, 583; see generally Estrada v Selman, 130 AD3d at 563; Rockland Tr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630, 630-631).

Similarly, the Supreme Court erred in declining to vacate so much of the June order as directed the dismissal of the fourth cause of action, alleging fraud, as time-barred. The plaintiff [*3]proffered a meritorious opposition to this branch of the defendants’ motion, demonstrating that this cause of action did not arise from the same facts as the legal malpractice cause of action, and that the complaint alleged distinct damages. Thus, the six-year limitations period of CPLR 213(8) for fraud claims applies, rather than the three-year limitations period of CPLR 214(6) (see Minsky v Haber, 74 AD3d 763, 764; see generally Estrada v Selman, 130 AD3d at 563; Rockland Tr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d at 630-631).