| Long v Cellino & Barnes, P.C. |
| 2009 NY Slip Op 00910 [59 AD3d 1062] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Keith Long, Appellant-Respondent, v Cellino & Barnes, P.C., etal., Respondents-Appellants, et al., Defendants. |
—[*1] Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Gabrielle Mardany Hope of counsel), fordefendants-respondents-appellants.
Appeal and cross appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin,J.), entered July 30, 2007 in a legal malpractice action. The order, inter alia, granted in part anddenied in part the cross motion of defendants Cellino & Barnes, P.C., The Barnes Firm, P.C.,Stephen E. Barnes, Esq., Richard J. Barnes, Esq., and Ross M. Cellino, Jr., Esq. for summaryjudgment dismissing the complaint against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this legal malpractice action seeking damages resultingfrom, inter alia, the alleged negligence of defendants-respondents (defendants) in theirrepresentation of plaintiff in the underlying Labor Law and common-law negligence action.Defendants commenced the underlying action seeking damages for injuries sustained byplaintiff, an ironworker, when he fell approximately 20 feet to the ground from the mezzaninedeck of a warehouse. Defendants failed, however, to commence the action against the correctgeneral contractor and owner of the construction project within the statute of limitations, andthey admit that such failure constituted negligence.
Contrary to plaintiff's contention, Supreme Court properly granted those parts of the firstcross motion of defendants seeking summary judgment dismissing the breach of contract andfraud causes of action against them as duplicative of the malpractice cause of action. The breachof contract cause of action arises from the same facts and alleges the same damages as themalpractice cause of action (see InKine Pharm. Co. v Coleman, 305 AD2d 151, 152[2003]). With respect to the fraud cause of action, defendants met their initial burden byestablishing that plaintiff failed to allege fraud "premised upon one or more affirmative,intentional misrepresentations—that is, something more egregious than mere[*2]'concealment or failure to disclose [defendants'] own malpractice'. . .—which have caused additional damages, separate and distinct fromthose generated by the alleged malpractice" (White of Lake George v Bell, 251 AD2d777, 778 [1998], appeal dismissed 92 NY2d 947 [1998]; see Tasseff v Nussbaumer& Clarke, 298 AD2d 877, 878 [2002]). Plaintiff failed to raise a triable issue of fact inopposition to those parts of the first cross motion (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
We further conclude that the court properly granted that part of defendants' second crossmotion seeking summary judgment dismissing the claim for punitive damages. Plaintiff failed to"allege conduct that was directed to the general public or that evinced the requisite 'high degreeof moral turpitude' or 'wanton dishonesty' to support a claim for punitive damages" (Williams v Coppola, 23 AD3d1012, 1013 [2005], lv dismissed 7 NY3d 741 [2006], quoting Walker vSheldon, 10 NY2d 401, 405 [1961]). The court also properly exercised its discretion ingranting that part of the second cross motion for a protective order precluding plaintiff fromdeposing defendants. Defendants admitted their negligence, and plaintiff failed to establish thatthe additional evidence he sought was relevant and necessary to the issues to be determined attrial (see generally Wolin v St. Vincent's Hosp. & Med. Ctr. of N.Y., 304 AD2d 348[2003]).
Contrary to the contention of defendants on their cross appeal, the court properly denied thatpart of the first cross motion seeking summary judgment dismissing the malpractice cause ofaction. Defendants' own submissions raise triable issues of fact whether plaintiff would havesucceeded in the underlying action absent defendants' negligence (see generally Phillips v Moran & Kufta,P.C., 53 AD3d 1044 [2008]). Present—Scudder, P.J., Martoche, Smith, Greenand Gorski, JJ.