| Soni v Pryor |
| 2013 NY Slip Op 00324 [102 AD3d 856] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Om P. Soni et al., Appellants, v Robert L. Pryor etal., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Matthew J. Bizzaroof counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appealfrom an order of the Supreme Court, Nassau County (Brown, J.), entered May 15, 2012,which granted the defendants' motion pursuant to CPLR 3211 (a) to dismiss thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) todismiss the cause of action alleging legal malpractice, and substituting therefor aprovision denying that branch of the motion; as so modified, the order is affirmed, withcosts to the plaintiffs.
The plaintiffs retained the defendants to represent them in an action commencedagainst the plaintiffs alleging that the plaintiffs had engaged in certain wrongful acts asdirectors and officers of several corporations. The parties subsequently had a fee dispute,which was resolved in an arbitration proceeding conducted pursuant to part 137 of theRules of the Chief Administrator of the Courts (22 NYCRR 137.0-137.12 [hereinafterpart 137]). The panel of arbitrators awarded the defendants the sum of $48,103.75, thefull amount in dispute, and the arbitration award was confirmed by the Supreme Court ina proceeding commenced pursuant to CPLR article 75. The plaintiffs subsequentlycommenced this action alleging that the defendants had committed legal malpractice andbreach of contract by failing to investigate whether there were insurance policies issuedto the corporations that would have covered the attorney's fees, defense costs, and lossincurred by the plaintiffs in the underlying action.
The Supreme Court should have denied that branch of the defendants' motion whichwas to dismiss the complaint on the ground that the complaint is barred by the doctrinesof collateral estoppel and res judicata. Part 137 expressly provides that it does not applyto "claims involving substantial legal questions, including professional malpractice ormisconduct" (22 NYCRR 137.1 [b] [3]). As such, the defendants failed to sustain theirburden of demonstrating that all of the issues raised in the instant action which are ormay be determinative thereof were necessarily decided in the arbitration proceeding, orin the proceeding to confirm the arbitration award (see Mahler v Campagna, 60 AD3d 1009, 1011-1012[2009]). Moreover, in opposition to the motion, the plaintiffs [*2]submitted an affidavit of the plaintiff Om P. Soni, in whichhe stated that the arbitration panel refused to consider issues regarding the quality of thelegal services performed by the defendants, and this evidence was sufficient todemonstrate that, in any event, the plaintiffs lacked a full and fair opportunity to litigatethe issues raised in the instant complaint (see id. at 1012).
However, the defendants were entitled to dismissal of the cause of action allegingbreach of contract, albeit on a ground different from that articulated by the SupremeCourt (see CPLR 3211 [a] [7]). The cause of action alleging breach of contractwas duplicative of the cause of action alleging legal malpractice, since it arose from thesame facts and did not seek distinct and different damages (see Ofman v Katz, 89 AD3d909, 911 [2011]; Alizio vFeldman, 82 AD3d 804, 805 [2011]; Mahler v Campagna, 60 AD3d at1012). Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.