| Cherry Hill Mkt. Corp. v Cozen O'Connor P.C. |
| 2014 NY Slip Op 04248 [118 AD3d 514] |
| June 12, 2014 |
| Appellate Division, First Department |
[*1]
| Cherry Hill Market Corporation et al.,Appellants, v Cozen O'Connor P.C. et al.,Respondents. |
Paul Batista, P.C., New York (Paul Batista of counsel), for appellants.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Gerard E. Harperof counsel), for Cozen O'Connor P.C., respondent.
Law Offices Of Sarah Diane Mc Shea, New York (Sarah Diane Mc Shea of counsel),for Howard B. Hornstein, respondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered April25, 2013, which granted defendants' motion to dismiss the complaint to the extent itdismissed the complaint without prejudice to plaintiffs re-serving a further complaint,unanimously modified, on the law, to deny the motion as to the third cause of action, andotherwise affirmed, without costs.
The first two causes of action allege that defendants, as plaintiffs' retained counsel ina zoning matter and an unrelated litigation, provided inadequate and ineffectiverepresentation because plaintiffs' "objectives" in the zoning matter were notachieved, and because a summary-judgment motion was not filed by the court-imposeddeadline in the unrelated litigation. The court properly treated the causes of action assounding in legal malpractice, as opposed to causes of action founded upon common-lawnegligence and breach of fiduciary duty, and properly dismissed them due to insufficientallegations as to proximate cause (see generally Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman& Dicker, 56 AD3d 1, 10 [1st Dept 2008]; Brooks v Lewin, 21 AD3d731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). Indeed,plaintiffs did not plead facts to indicate that "but for" defendants' alleged inadequate andineffective representation of plaintiffs in the zoning and litigation matters, plaintiffswould have achieved the desired results sought (Leder v Spiegel, 9 NY3d 836, 837 [2007], certdenied 552 US 1257 [2008]; Lieblich v Pruzan, 104 AD3d 462, 462-463 [1st Dept2013]).
Plaintiffs' third cause of action, alleging that defendants breached their fiduciary dutybecause they either collected and/or billed plaintiffs for excessive and/or unearned fees,should not have been dismissed as duplicative of the malpractice causes of action (see Loria v Cerniglia, 69 AD3d583, 583 [2d Dept 2010]). The third cause of action was not based upon the samefacts underlying the malpractice claims (cf. Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134,143 [1st Dept 2013], lv denied 22 NY3d 855 [2013]). With respect to the instantcomplaint, a claim [*2]of breach of fiduciary duty can bepremised on excessive legal fees charged by an attorney (see Sobel v Ansanelli, 98AD3d 1020, 1022 [2d Dept 2012]; see also Nason v Fisher, 36 AD3d 486, 487 [1st Dept2007]).
The court providently exercised its discretion in dismissing plaintiffs' fourth cause ofaction seeking declaratory relief regarding a dispute over legal fees, since an adequateremedy at law existed for the claim (namely, the third cause of action) (see generallyApple Records v Capitol Records, 137 AD2d 50, 54 [1st Dept 1988]).Concur—Acosta, J.P., DeGrasse, Richter, Manzanet-Daniels and Feinman, JJ.[Prior Case History: 2013 NY Slip Op 33562(U).]