LONG v. CELLINO BARNES (2009)

Plaintiff commenced this legal malpractice action seeking damages resulting from, inter alia, the alleged negligence of defendants-respondents (defendants) in their representation of plaintiff in the underlying Labor Law and common-law negligence action.   Defendants commenced the underlying action seeking damages for injuries sustained by plaintiff, an ironworker, when he fell approximately 20 feet to the ground from the mezzanine deck of a warehouse.   Defendants failed, however, to commence the action against the correct general contractor and owner of the construction project within the statute of limitations, and they admit that such failure constituted negligence.

 Contrary to plaintiff's contention, Supreme Court properly granted those parts of the first cross motion of defendants seeking summary judgment dismissing the breach of contract and fraud causes of action against them as duplicative of the malpractice cause of action.   The breach of contract cause of action arises from the same facts and alleges the same damages as the malpractice cause of action (see InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62).   With respect to the fraud cause of action, defendants met their initial burden by establishing that plaintiff failed to allege fraud “premised upon one or more affirmative, intentional misrepresentations-that is, something more egregious than mere ‘concealment or failure to disclose [defendants'] own malpractice’ ․-which have caused additional damages, separate and distinct from those generated by the alleged malpractice” (White of Lake George v. Bell, 251 A.D.2d 777, 778, 674 N.Y.S.2d 162, appeal dismissed 92 N.Y.2d 947, 681 N.Y.S.2d 477, 704 N.E.2d 230;  see Tasseff v. Nussbaumer & Clarke, 298 A.D.2d 877, 878, 747 N.Y.S.2d 621).   Plaintiff failed to raise a triable issue of fact in opposition to those parts of the first cross motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 We further conclude that the court properly granted that part of defendants' second cross motion seeking summary judgment dismissing the claim for punitive damages.   Plaintiff failed to “allege conduct that was directed to the general public or that evinced the requisite ‘high degree of moral turpitude’ or ‘wanton dishonesty’ to support a claim for punitive damages” (Williams v. Coppola, 23 A.D.3d 1012, 1013, 804 N.Y.S.2d 172, lv. dismissed 7 N.Y.3d 741, 819 N.Y.S.2d 875, 853 N.E.2d 246, quoting Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 179 N.E.2d 497).   The court also properly exercised its discretion in granting that part of the second cross motion for a protective order precluding plaintiff from deposing defendants.   Defendants admitted their negligence, and plaintiff failed to establish that the additional evidence he sought was relevant and necessary to the issues to be determined at trial (see generally Wolin v. St. Vincent's Hosp. & Med. Ctr. of N.Y., 304 A.D.2d 348, 757 N.Y.S.2d 33).

 Contrary to the contention of defendants on their cross appeal, the court properly denied that part of the first cross motion seeking summary judgment dismissing the malpractice cause of action.   Defendants' own submissions raise triable issues of fact whether plaintiff would have succeeded in the underlying action absent defendants' negligence (see generally Phillips v. Moran & Kufta, P.C., 53 A.D.3d 1044, 862 N.Y.S.2d 875).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: