BEST v. LAW FIRM OF QUELLER AND FISHER

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

Arthur BEST, et al., Appellants, v. LAW FIRM OF QUELLER AND FISHER, et al., Respondents.

Decided: December 26, 2000

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Arthur Best and Debra Best, Freeport, N.Y., appellants pro se. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Matthew K. Flanagan of counsel), for respondents.

In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Alpert, J.), dated October 14, 1999, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In a prior proceeding, the Supreme Court found that the defendants in this action, who were the attorneys for the plaintiffs in that proceeding, were entitled to their agreed-upon legal fee.   Inasmuch as that determination necessarily decided that there was no malpractice, the plaintiffs are precluded from asserting a cause of action alleging malpractice (see, Nat Kagan Meat & Poultry v. Kalter, 70 A.D.2d 632, 416 N.Y.S.2d 646).

Moreover, the Supreme Court properly dismissed the causes of action alleging fraud and breach of contract and for indemnification, since these arise from the same facts as the malpractice cause of action, and thus are duplicative of that cause of action (see, Mecca v. Shang, 258 A.D.2d 569, 685 N.Y.S.2d 458).

MEMORANDUM BY THE COURT.

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