| Ideal Steel Supply Corp. v Beil |
| 2008 NY Slip Op 07620 [55 AD3d 544] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Ideal Steel Supply Corp., Appellant-Respondent, v Marshall H.Beil et al., Respondents-Appellants. |
—[*1] Kavanagh Maloney & Osnato LLP, New York, N.Y. (James J. Maloney, David F. Bayne, andSteven M. Cordero of counsel), for respondents-appellants.
In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals,as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.),entered July 13, 2007, as granted those branches of the defendants' motion which were pursuant toCPLR 3211 (a) (7) to dismiss stated portions of the first and third causes of action and the claim fortreble damages and the defendants cross-appeal, as limited by their brief, from so much of the sameorder as denied that branch of their motion which was pursuant to CPLR 3211 (a) (1) and (7) todismiss stated portions of the first cause of action.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
The defendants, an attorney and two law firms, represented the plaintiff in federal litigation entitledIdeal Steel Supply Corp. v Anza, commenced in the United States District Court for theSouthern District of New York under docket No. 02 Civ 4788 (see Anza v Ideal Steel SupplyCorp., 547 US 451 [2006]) (hereinafter the underlying action). The defendants interposed claimson the plaintiff's behalf in the underlying action pursuant to the Racketeer Influenced and CorruptOrganizations Act (hereinafter RICO) (18 USC § 1962 [a], [c]), and further asserted a stateclaim to recover damages for breach of a settlement agreement pursuant to the supplemental jurisdictionof the United States District Court (see 28 USC § 1367 [a]). Issues arising in thelengthy litigation [*2]of the underlying action were ultimately heard bythe United States Supreme Court, which dismissed one of the plaintiff's RICO claims and remittedanother to the United States Court of Appeals for the Second Circuit for further consideration andanalysis. Prior to the decision of the United States Supreme Court, the relationship of the partiesdeteriorated and substitute counsel was retained.
The plaintiff then commenced this action against the defendants, alleging, inter alia, legal malpracticeand breach of contract, and asserting a demand for treble damages. The defendants moved to dismissthe complaint pursuant to CPLR 3211 (a) (1) and (7). The Supreme Court granted the motion in partand denied it in part. The plaintiff appeals, and the defendants cross-appeal, from certain portions of theorder that were adverse to each of them. We affirm the order insofar as appealed and cross-appealedfrom.
The Supreme Court properly dismissed so much of the cause of action alleging legal malpractice aschallenged the defendants' election to prosecute a RICO claim in the underlying action, to the exclusionof other claims. The plaintiff failed to allege facts to support its conclusory allegations that other claimswould have been viable and would have afforded it an expeditious, less costly recovery (see Lester v Braue, 25 AD3d 769[2006]; Holschauer v Fisher, 5 AD3d553 [2004]; Mayer v Sanders, 264 AD2d 827 [1999]). In any event, the "selection ofone among several reasonable courses of action does not constitute malpractice" (Rosner v Paley,65 NY2d 736, 738 [1985]; Dimond vKazmierczuk & McGrath, 15 AD3d 526, 527 [2005]).
The Supreme Court properly upheld the sufficiency, for the purposes of pleading, of so much of thebreach of contract cause of action as alleged an unwarranted increase in hourly fees and a failure toprovide promised adjustments to the billing. These claims are based on specific facts articulated in thecomplaint, which are sufficient to state a cause of action alleging breach of contract (see Ground toAir Catering v Dobbs Intl. Servs., 285 AD2d 931 [2001]; 1414 Realty Corp. v G & G RealtyCo., 272 AD2d 309 [2000]). Moreover, the documentary evidence submitted on the motion didnot conclusively disprove these allegations (see Turkat v Lalezarian Devs., Inc., 52 AD3d 595 [2008]; McGuire v Sterling Doubleday Enters., L.P.,19 AD3d 660 [2005]; Meyer v Guinta, 262 AD2d 463 [1999]). While the retaineragreement between the plaintiff and the defendants provided that rates may be adjusted periodically,the complaint alleges that the parties entered into a subsequent oral agreement to reduce the fees.Contrary to the defendants' contention, the retainer agreement did not preclude oral modifications to theterms of the subject engagement.
The remainder of the breach of contract cause of action was properly dismissed as duplicative ofthe legal malpractice cause of action (seeWright v Meyers & Spencer, LLP, 46 AD3d 805 [2007]; Pellegrino v File, 291AD2d 60, 64 [2002]; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d399 [2002]; Mecca v Shang, 258 AD2d 569 [1999]; Levine v Lacher & Lovell-Taylor,256 AD2d 147, 151 [1998]).
The plaintiff's demand for treble damages on its legal malpractice cause of action was properlydismissed (see Ross v Louise Wise Servs.,Inc., 8 NY3d 478, 488 [2007]; Rosenkrantz v Harriet M. Steinberg, P.C., 13 AD3d 88 [2004]; seealso Judiciary Law § 487; Tawil vWasser, 21 AD3d 948 [2005]; Knecht v Tusa, 15 AD3d 626 [2005]). Prudenti, P.J., Santucci,McCarthy and Chambers, JJ., concur. [See 2007 NY Slip Op 32030(U).]