Ditondo v. Frederick J. Meagher Jr.

• Decision Date: 09 June 2011
• Citation: 924 N.Y.S.2d 666,85 A.D.3d 1385,2011 N.Y. Slip Op. 04805
• Parties: Joseph N. DiTONDO et al., Appellants,v.Frederick J. MEAGHER Jr. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1385

924 N.Y.S.2d 666

2011 N.Y. Slip Op. 04805

Joseph N. DiTONDO et al., Appellants,

v.Frederick J. MEAGHER Jr. et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

June 9, 2011.

Michaels & Smolak, P.C., Auburn (Lee S. Michaels of counsel), for appellants.Costello, Cooney & Fearon, P.L.L.C., Syracuse (Jennifer L. Nuhfer of counsel), for respondents.Before: PETERS, J.P., MALONE JR., STEIN and EGAN JR., JJ.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 partial summary judgment dismissing plaintiffs' claim for preverdict interest.

Plaintiffs commenced this legal malpractice action against defendants seeking $2 million in damages, plus interest, for defendants' alleged mishandling of an underlying personal injury action. Following joinder of issue, defendants moved for partial summary judgment to dismiss plaintiffs' claim for preverdict interest alleging, among other things, that because plaintiffs had asserted legal malpractice causes of action sounding only in negligence, and not breach of contract, they were not entitled to preverdict interest. Plaintiffs thereafter moved to amend their complaint to add a breach of contract cause of action. Finding that plaintiffs' proposed amendment was “redundant to the existing legal malpractice negligence causes of action,” Supreme Court denied plaintiffs' motion. The court then determined that, in light of its determination to deny plaintiffs' motion to add a breach of contract claim, the complaint contained only negligence causes of action and granted defendants' motion for partial summary judgment dismissing plaintiffs' claim for preverdict interest. Plaintiffs appeal.

Where an individual claim of breach of contract arises out of the same facts as an asserted legal malpractice cause of action and does not allege distinct damages, the breach of contract claim is duplicative of the malpractice claim ( see Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d 849, 850, 879 N.Y.S.2d 145 [2009]; Garten v. Shearman & Sterling LLP, 52 A.D.3d 207, 207–208, 859 N.Y.S.2d 80 [2008]; peak v. bartlett, pontiff, stewart & RHODES, P.C., 28 a.d.3D 1028, 1031, 814 N.Y.S.2d 763 [2006]; see also 76 N.Y. 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 upon the same facts as the legal malpractice claim, is redundant and their motion was appropriately denied. However, “ ‘CPLR 5001 operates to permit an award of prejudgment interest...