| Reidy v Martin |
| 2010 NY Slip Op 07734 [77 AD3d 903] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Stephen Reidy, Appellant, v William T. Martin et al.,Defendants, and Richard B. Herman, Respondent. |
—[*1]
In an action to recover damages for legal malpractice and breach of contract, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County(Mayersohn, J.), dated October 9, 2009, as granted that branch of the motion of the defendantRichard B. Herman which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of actionalleging breach of contract insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Richard B. Herman which was pursuant to CPLR 3211 (a)(7) to dismiss the cause of action alleging breach of contract insofar as asserted against him isdenied.
Contrary to the Supreme Court's conclusion, the plaintiff stated a cause of action to recoverdamages for breach of contract against his former attorney, Richard B. Herman, and it was notduplicative of the legal malpractice cause of action, which the Supreme Court dismissed forfailure to state a cause of action. The plaintiff alleged that he paid Herman the sum of $65,000 tomake motions to vacate pleas he previously entered in state and federal court, and that Hermanfailed to do so. A cause of action to recover damages for breach of contract may be maintainedagainst an attorney where there is a promise to perform and no subsequent performance, and suchis not duplicative of a legal malpractice cause of action (see Ruffolo v Garbarini & Scher,239 AD2d 8, 9-10 [1998]; Kaplan v Sachs, 224 AD2d 666, 667 [1996]; Saveca vReilly, 111 AD2d 493, 494-495 [1985]; see also Vogel v Lyman, 246 AD2d 422,423 [1998]; see generally Colucci v O'Brien, 204 AD2d 257 [1994]; cf. Ferdinand v Crecca & Blair, 5AD3d 538, 539 [2004]). Accordingly, the Supreme Court should have denied that branch ofHerman's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of actionalleging breach of contract insofar as asserted against him. Rivera, J.P., Angiolillo, Chambersand Austin, JJ., concur.