Opinion
2013-02-26
OASIS SPORTSWEAR, INC., Plaintiff, v. Patricia REGO, et al., Defendants. [And A Third–Party Action] Patricia Rego, et al., Third–Party Plaintiffs–Appellants, v. CBIZ Mahoney Cohen, Inc., etc., et al., Third–Party Defendants–Respondents.
Kevin T. Mulhearn, Orangeburg, for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (William J. Kelly of counsel), for respondents.
Kevin T. Mulhearn, Orangeburg, for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (William J. Kelly of counsel), for respondents.
FRIEDMAN, J.P., SAXE, MOSKOWITZ, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about January 24, 2012, which, to the extent appealed from as limited by the briefs, granted third-party defendants' motion for summary judgment dismissing third-party plaintiffs' breach of contract cause of action, unanimously affirmed, with costs.
The court correctly dismissed the breach of contract claim as duplicative of the time-barred negligence claim, which was essentially a professional malpractice claim ( see LaSalle Natl. Bank v. Ernst & Young, 285 A.D.2d 101, 109, 729 N.Y.S.2d 671 [1st Dept. 2001] ). Third-party plaintiffs failed to allege facts sufficient to show that the accounting contract entered into between plaintiff Oasis and third-party defendant CBIZ was intended to benefit third-party plaintiffs ( LaSalle, 285 A.D.2d at 108–109, 729 N.Y.S.2d 671 [1st Dept. 2001] ). Accordingly, third-party plaintiffs failed to allege third-party beneficiary status ( see Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786, 811 N.Y.S.2d 294, 844 N.E.2d 748 [2006] ). Nor did they allege any promises or assurances made to them by CBIZ.
We have considered third-party plaintiffs' remaining arguments and find them unavailing.