Vt. Mut. Ins. Co. v. McCabe & Mack, LLP

• Citation: 2013 N.Y. Slip Op. 02392,105 A.D.3d 837,964 N.Y.S.2d 160
• Court: New York Supreme Court Appellate Division
• Decision Date: 10 April 2013
• Parties: VERMONT MUTUAL INSURANCE COMPANY, appellant, v. McCABE & MACK, LLP, et al., respondents.

105 A.D.3d 837

964 N.Y.S.2d 160

2013 N.Y. Slip Op. 02392

VERMONT MUTUAL INSURANCE COMPANY, appellant,

v.McCABE & MACK, LLP, et al., respondents.

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

April 10, 2013.

Bailey, Kelleher & Johnson, P.C., Albany, N.Y. (John W. Bailey of counsel), for appellant.

Costello, Cooney & Fearon, PLLC, Syracuse, N.Y. (Christopher G. Todd of counsel), for respondents.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for legal malpractice, breach of contract, negligent supervision, and fraud, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated November 29, 2011, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract, negligent supervision, and fraud.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages arising from the defendants' legal representation of it in an underlying subrogation action. In its complaint, the plaintiff alleged that the defendants committed legal malpractice in failing to timely pursue a default judgment against the defendants in the underlying subrogation action. The plaintiff also interposed separate causes of action alleging breach of contract, negligent supervision, and fraud. With regard to the fraud causes of action, the plaintiff alleged that the defendants committed fraud by misrepresenting that they “made a motion for a default judgment” when they “never made, filed, or drafted” such a motion, and that they billed the plaintiff for drafting the motion. The plaintiff sought damages in the sum of $216,632.25, the same sum sought in the causes of action alleging legal malpractice, in addition to “additional damages, separate and distinct from the underlying malpractice.”

After issue had been joined, but prior to the completion of discovery, the defendants moved, inter alia, pursuant to CPLR 3211(a)(7), to dismiss the causes of action alleging breach of contract, negligent supervision, and fraud on the basis that they were “duplicative and redundant” of the causes of action alleging legal malpractice or, in the alternative, to dismiss the causes of action alleging fraud on the basis that the plaintiff failed to assert facts upon which a viable fraud claim could be sustained. The Supreme Court granted those branches of the motion which were to dismiss the causes of action alleging breach of contract and negligent supervision as duplicative of the causes of action alleging legal malpractice. The court also granted that branch of the motion which was to dismiss the causes of action alleging fraud; however, the court did so solely on the basis of the defendants' representation to the court that all sums billed to the plaintiff for the drafting of the motion for a default judgment in the underlying subrogation action had been “written off,” and the plaintiff never paid the defendants for those services.

“When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action” ( Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153;see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). “In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted] ). “ ‘Whether a plaintiff can ultimately establish its allegations is not part of the calculus' ” ( id. at 1181, 904 N.Y.S.2d 153, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 799 N.Y.S.2d 170, 832 N.E.2d 26).

The Supreme Court properly determined that the causes of action alleging breach of contract and negligent supervision were subject to dismissal. The defendants established that these causes of action arise from the same facts as the causes of action alleging legal malpractice and do not allege distinct damages. Thus, they are duplicative of the causes of action alleging legal malpractice ( see Tsafatinos v. Lee David Auerbach, P.C., 80 A.D.3d 749, 915 N.Y.S.2d 500;Sitar v. Sitar, 50 A.D.3d 667, 854 N.Y.S.2d 536;Shivers v. Siegel, 11 A.D.3d 447, 782 N.Y.S.2d 752;Malarkey v. Piel, 7 A.D.3d 681, 776 N.Y.S.2d 845;Mecca v. Shang, 258 A.D.2d 569, 685 N.Y.S.2d 458).

However, the Supreme Court erred in granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7)...