Summary
concluding the "court should have also dismissed Dr. Mecca's negligent misrepresentation and gross negligence causes of action, since these claims similarly arise from the same facts as his legal malpractice claim and are duplicative of that cause of action"
Summary of this case from Applied Energetics, Inc. v. Stein Riso Mantel McDonough, LLPOpinion
February 16, 1999
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is modified by (1) deleting the provisions thereof denying those branches of the defendants' motion which were to dismiss the second, third, and ninth causes of action insofar as asserted by the plaintiff Louise Mecca and substituting therefor provisions granting those branches of the defendants' motion, and (2) deleting the provisions thereof denying those branches of the defendants' motion which were to dismiss the second, third, seventh, and ninth causes of action insofar as asserted by the plaintiff Joseph T. Mecca, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff Dr. Joseph T. Mecca retained the defendants to represent him in a proceeding pursuant to CPLR article 78 to review a determination of the Department of Social Services which excluded him from participation in the Medicaid program for a period of five years, and required him to pay restitution in the amount of $351,545. Although the proceeding resulted in an order reducing the monetary penalty to $212,849, the determination excluding Dr. Mecca from participation in the Medicaid program for five years was confirmed (see, Matter of Mecca v. Dowling, 210 A.D.2d 821).
Dr. Mecca and his wife Louise subsequently commenced this action alleging, inter alia, that the defendants' faulty legal advice caused him to pursue the CPLR article 78 proceeding rather than accept a favorable settlement proposal which had been offered by the Department of Social Services. The defendants subsequently moved to dismiss the complaint for failure to state a cause of action, and the Supreme Court granted the motion to the extent of dismissing the plaintiffs' causes of action to recover damages for breach of fiduciary duty, breach of contract, fraud, and violation of General Business Law § 349 Gen. Bus.. The court also dismissed the legal malpractice and Judiciary Law § 487 claims insofar as asserted by the plaintiff Louise Mecca, who never retained the defendants' legal services and was not a party to the CPLR article 78 proceeding. The defendants now appeal, and the plaintiffs cross-appeal.
It is well settled that in considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept the allegations set forth in the complaint as true, and give them the benefit of every favorable inference (see, Cron v. Hargro Fabrics, 91 N.Y.2d 362, 365; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275). Viewed from this perspective, Dr. Mecca's first cause of action is sufficient to state a cause of action to recover damages for legal malpractice (see, Scheller v. Martabano, 177 A.D.2d 690). Accordingly, the Supreme Court properly declined to dismiss that cause of action.
The Supreme Court properly dismissed Dr. Mecca's cause of action sounding in breach of contract, since that claim is predicated upon the theory that the defendants explicitly promised to fully prevail in the CPLR article 78 proceeding, which is not supported by the factual allegations in the complaint (see, Santulli v. Englert, Reilly McHugh, 78 N.Y.2d 700, 705). In addition, the court did not err in dismissing Dr. Mecca's breach of fiduciary duty and fraud claims, since they arise from the same facts as his legal malpractice claim and do not allege distinct damages (see, White of Lake George v. Bell, 251 A.D.2d 777; CVC Capital Corp. v. Weil, Gotshal, Manges, 192 A.D.2d 324, 325; LaBrake v. Enzien, 167 A.D.2d 709). However, the court should have also dismissed Dr. Mecca's negligent misrepresentation and gross negligence causes of action, since these claims similarly arise from the same facts as his legal malpractice claim and are duplicative of that cause of action (see, Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35; CVC Capital Corp. v. Weil, Gotshal, Manges, supra). Dr. Mecca's ninth cause of action for disgorgement of legal fees must also be dismissed since it too is predicated upon the same factual allegations as the malpractice claim, and seeks damages which may be recovered on that cause of action.
Dr. Mecca's eighth cause of action should be dismissed because it is not supported by allegations of deceit sufficient to state a cause of action to recover damages for violation of Judiciary Law § 487 (see, Zambito v. Ryan, 125 A.D.2d 462).
Finally, we find that the complaint should be dismissed insofar as asserted by Louise Mecca, since she has sustained no independent damages due to the acts allegedly committed by the defendants while they were representing her husband in the CPLR article 78 proceeding.
The parties' remaining contentions are without merit.
Altman, J. P., Friedmann, Krausman and Luciano, JJ., concur.