| DiTondo v Meagher |
| 2011 NY Slip Op 04805 [85 AD3d 1385] |
| June 9, 2011 |
| Appellate Division, Third Department |
| Joseph N. DiTondo et al., Appellants, v Frederick J.Meagher, Jr. et al., Respondents. |
—[*1] Costello, Cooney & Fearon, P.L.L.C., Syracuse (Jennifer L. Nuhfer of counsel), forrespondents.
Malone Jr., J. Appeal from an order of the Supreme Court (LeBous, J.), entered October 29,2010 in Broome County, which, among other things, granted defendants' motion for partialsummary judgment dismissing plaintiffs' claim for preverdict interest.
Plaintiffs commenced this legal malpractice action against defendants seeking $2 million indamages, plus interest, for defendants' alleged mishandling of an underlying personal injuryaction. Following joinder of issue, defendants moved for partial summary judgment to dismissplaintiffs' claim for preverdict interest alleging, among other things, that because plaintiffs hadasserted legal malpractice causes of action sounding only in negligence, and not breach ofcontract, they were not entitled to preverdict interest. Plaintiffs thereafter moved to amend theircomplaint to add a breach of contract cause of action. Finding that plaintiffs' proposedamendment was "redundant to the existing legal malpractice negligence causes of action,"Supreme Court denied plaintiffs' motion. The court then determined that, in light of itsdetermination to deny plaintiffs' motion to add a breach of contract claim, the complaintcontained only negligence causes of action and granted defendants' motion for partial summaryjudgment dismissing plaintiffs' claim for preverdict interest. Plaintiffs appeal.
Where an individual claim of breach of contract arises out of the same facts as an assertedlegal malpractice cause of action and does not allege distinct damages, the breach of contractclaim is duplicative of the malpractice claim (see Turner v Irving Finkelstein & [*2]Meirowitz, LLP, 61 AD3d 849, 850 [2009]; Garten v Shearman & Sterling LLP, 52AD3d 207, 207-208 [2008]; Peak vBartlett, Pontiff, Stewart & Rhodes, P.C., 28 AD3d 1028, 1031 [2006]; see also76 NY Jur 2d, Malpractice § 37). Therefore, we agree with Supreme Court that plaintiffs'proposed amendment to the complaint, asserting a breach of contract cause of action based uponthe same facts as the legal malpractice claim, is redundant and their motion was appropriatelydenied. However, " 'CPLR 5001 operates to permit an award of prejudgment interest from thedate of the accrual of the malpractice action in actions seeking damages for attorney malpractice'" (Barnett v Schwartz, 47 AD3d197, 208 [2007], quoting Horstmann v Nicholas J. Grasso, P.C., 210 AD2d 671, 673[1994]; see Mizuno v Fischoff &Assoc., 82 AD3d 849, 850 [2011]; Leach v Bailly, 57 AD3d 1286, 1289 [2008]; but see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 444 n 3 [2007]). Moreover, as here, "[w]here the injurysuffered [as a result of legal malpractice] is the loss of a cause of action, the measure of damagesis generally the value of the claim lost," whether the malpractice claim sounds in negligence or inbreach of contract (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]).Thus, contrary to defendants' contentions, Supreme Court erred by dismissing plaintiffs' claim forpreverdict interest.
Peters, J.P., Stein and Egan Jr., JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as granted defendants' motion for partial summaryjudgment; motion denied; and, as so modified, affirmed.