| Financial Servs. Veh. Trust v Saad |
| 2010 NY Slip Op 03405 [72 AD3d 1019] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Financial Services Vehicle Trust, Plaintiff, v Andre H.Saad, Defendant/Third-Party Plaintiff-Respondent. O'Connor, McGuinness, Conte, Doyle &Oleson et al., Third-Party Defendants-Appellants, et al., Third-PartyDefendants. |
—[*1] Nan Geist Faber, P.C., Woodmere, N.Y., and Richard B. Ancowitz, Albany, N.Y., fordefendant/third-party plaintiff-respondent (one brief filed).
In an action for contractual indemnification, the third-party defendants O'Connor,McGuinness, Conte, Doyle & Oleson and William Watson appeal, as limited by their brief, fromso much of an order of the Supreme Court, Nassau County (Galasso, J.), entered December 15,2008, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (1) and(7) to dismiss the first through sixth and the ninth through twelfth causes of action of thethird-party complaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the third-party defendants O'Connor, McGuinness, Conte, Doyle& Oleson and William Watson which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss thesecond through fifth causes of action, so much of the ninth cause of action as alleged breach offiduciary duty, and the eleventh and twelfth causes of action of the third-party complaint insofaras asserted against them, and substituting therefore a provision granting those branches of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
Contrary to the appellants' contention, the Supreme Court properly denied those branches oftheir motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first cause ofaction and so much of the ninth cause of action of the third-party complaint alleging legalmalpractice insofar as asserted against them. Accepting the facts as alleged in the third-partycomplaint as true, and according the defendant third-party plaintiff Andre H. Saad the benefit ofevery favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; East Hampton Union Free School Dist. vSandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,LLP, 38 AD3d 34, 38 [2006]; Sinensky v Rokowsky, 22 AD3d 563, 564 [2005]), the third-partycomplaint, as amplified by Saad's affidavit (see Sheroff v Dreyfus Corp., 50 AD3d 877, 878 [2008]),adequately states causes of action against the appellants to recover damages for legal malpractice(see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3dat 39). Moreover, the documentary evidence submitted by the appellants failed to establish adefense to the legal malpractice claim as a matter of law (id. at 38, 39; see Goshen vMutual Life Ins. Co. of [*2]N.Y., 98 NY2d 314, 326 [2002];Klein v Gutman, 12 AD3d417, 418 [2004]).
However, the Supreme Court erred in denying those branches of the appellants' motionwhich were to dismiss the second and third causes of action of the third-party complaint allegingbreach of contract, and the fifth, eleventh, and so much of the ninth causes of action allegingbreach of fiduciary duty, insofar as asserted against them, as those causes of action arise from thesame facts as the legal malpractice claim, and do not allege distinct damages (see Mahler v Campagna, 60 AD3d1009, 1012 [2009]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,LLP, 38 AD3d at 43; Daniels v Lebit, 299 AD2d 310 [2002]). In addition, theSupreme Court should have granted that branch of the appellants' motion which was to dismissthe fourth cause of action of the third-party complaint alleging fraud insofar as asserted againstthem. Saad failed to plead that cause of action with the requisite particularity (see CPLR3016 [b]; Mahler v Campagna, 60 AD3d at 1012), and it was duplicative of the legalmalpractice claim (see Carl vCohen, 55 AD3d 478, 478-479 [2008]).
The Supreme Court should also have granted that branch of the appellants' motion whichwas to dismiss the twelfth cause of action of the third-party complaint seeking punitive damagesinsofar as asserted against them. Saad improperly denominated his request for punitive damagesas a separate cause of action (see YongWen Mo v Gee Ming Chan, 17 AD3d 356, 359 [2005]), and he failed to allege factssufficient to demonstrate that the appellants engaged in conduct which rose to the high level ofmoral culpability necessary to support a claim for punitive damages (see 99 Cents Concepts, Inc. v QueensBroadway, LLC, 70 AD3d 656 [2010]; Anderson v Elliott, 24 AD3d 400, 402 [2005]; cf. Randi A. J. v Long Is. Surgi-Ctr.,46 AD3d 74, 81-82 [2007]).
The appellants' remaining contentions are without merit. Fisher, J.P., Dillon, Dickerson andBelen, JJ., concur.