Summary
affirming dismissal of breach of contract claim because "the cause of action, as pleaded, did not rest upon a promise of a particular or assured result [but] only claimed a breach of general professional standards, which is viewed as a redundant pleading of a malpractice claim"
Summary of this case from EVIP Can., Inc. v. Schnader Harrison Segal & Lewis LLPOpinion
May 9, 1996
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
We find that the IAS Court properly dismissed the first and second causes of action for attorney malpractice and for breach of contract emanating from legal malpractice arising from defendants' alleged failure to properly raise and fully argue on appeal the propriety of the trial court order obligating plaintiff to make restitution to the customers of American Motor Club, Inc. (AMC) during defendants' representation of plaintiff on appeal in a protracted civil litigation brought by the State of New York against, inter alia, AMC and plaintiff herein ( People v. American Motor Club, 133 A.D.2d 593).
The first cause of action for legal malpractice was properly dismissed since plaintiff failed to demonstrate, as a matter of law, that any negligent acts or omissions of defendants proximately caused damage to plaintiff ( Zarin v. Reid Priest, 184 A.D.2d 385, 386-387), i.e., that "but for" the alleged malpractice of defendants he would have prevailed in the underlying action and would not have been subjected to an order of restitution ( supra, at 386-387, citing, inter alia, Carmel v. Lunney, 70 N.Y.2d 169, 173). Indeed, the record establishes the damages sustained by plaintiff in that action were proximately caused by plaintiff's own conduct in violating or permitting violations of sections 1102 Ins. and 2117 Ins. of the Insurance Law which authorized the trial court to require restitution under section 63 (12) of the Executive Law, rather than due to any legal malpractice on the part of defendants as appellate counsel ( Prudential Ins. Co. v. Dewey, Ballentine, Bushby, Palmer Wood, 80 N.Y.2d 377).
The second cause of action for breach of contract was also properly dismissed since the cause of action, as pleaded, did not rest upon a promise of a particular or assured result ( Pacesetter Communications Corp. v. Solin Breindel, 150 A.D.2d 232, 236, lv dismissed 74 N.Y.2d 892), and only claimed a breach of general professional standards ( Calhoun v. Gale, 29 A.D.2d 766, affd 23 N.Y.2d 756), which is viewed as "a redundant pleading of a malpractice claim" ( Winegrad v. Jacobs, 171 A.D.2d 525, lv dismissed 78 N.Y.2d 952).
We have considered plaintiff's remaining arguments and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Rosenberger, Nardelli and Tom, JJ.