| Chowaiki & Co. Fine Art Ltd. v Lacher |
| 2014 NY Slip Op 01992 [115 AD3d 600] |
| March 25, 2014 |
| Appellate Division, First Department |
| Chowaiki & Co. Fine Art Ltd. et al.,Appellants, v Michael A. Lacher, Respondent. |
—[*1] Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne (Jonathan Harwood ofcounsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 21,2012, which, to the extent appealed from, dismissed plaintiffs' causes of action for breachof fiduciary duty, violation of Judiciary Law § 487, fraud, legal malpractice, andunjust enrichment, and granted defendant's motion to strike scandalous or prejudicialmatter from the complaint, unanimously modified, on the law, to reinstate the cause ofaction for unjust enrichment, and otherwise affirmed, without costs.
In this action arising from defendant attorney and his law firm's representation ofplaintiffs in an action brought against them by a former employee, plaintiffs allege thatthey were excessively billed for services rendered, and that they were harassed,threatened and coerced into paying the excessive and overinflated fees. The motion courtproperly dismissed plaintiffs' claim for breach of fiduciary duty as duplicative of thebreach of contract claim, since the claims are premised upon the same facts and seekidentical damages, return of the excessive fees paid (see CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d562 [1st Dept 2010]; cf.Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1stDept 2008]). Although plaintiffs sufficiently allege an independent duty owed to them,arising from the attorney-client relationship, the fraud claim is similarly redundant of thebreach of contract claim, since it also seeks the same damages (see Coppola vApplied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]; Makastchian v OxfordHealth Plans, 270 AD2d 25, 27 [1st Dept 2000]).
However, we find that, as a dispute exists as to the application of the retaineragreement as to defendant, plaintiffs need not elect their remedies and may pursue aquasi-contractual claim for unjust enrichment, as an alternative claim (see Wilmoth vSandor, 259 AD2d 252, 254 [1st Dept 1999]).
The cause of action based upon Judiciary Law § 487 was properly dismissedsince relief under this statute is not lightly given and the conduct alleged does notestablish the existence of a chronic and/or extreme pattern of legal delinquency whichcaused damages (see Kaminskyv Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12NY3d 715 [2009]; Nason vFisher, 36 AD3d 486, 487 [1st Dept 2007]).[*2]
Plaintiffs' claims of excessive billing and relatedconduct, which actions are not alleged to have adversely affected their claims or defensesin the underlying action, do not state a claim for legal malpractice (see e.g. AmBase Corp. v DavisPolk & Wardwell, 8 NY3d 428, 434 [2007]).
We find that the court did not improvidently strike scandalous and/or prejudicialmatter from the complaint. References to other actions and a tax levy are irrelevant toplaintiffs' claims (see CPLR 3024 [b]; Soumayah v Minnelli, 41 AD3d 390, 392 [1st Dept 2007]).Although an order that "orders or refuses to order that scandalous or prejudicial matter bestricken from a pleading" is not appealable as of right (CPLR 5701 [b] [3]), we reach thisissue, since defendant has not raised the question of appealability (see Pearlberg vLacks, 23 AD2d 834 [1st Dept 1965]). Concur—Tom, J.P., Friedman,Sweeny, Saxe and Freedman, JJ.