Genesis Merchant Partners, LP v. Gilbride, Tusa, Last & Spellane LLC

2017 NY Slip Op 2753, 149 A.D.3d 469, 49 N.Y.S.3d 886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 2017
• Docket: 3663 653145/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about June 23, 2015, which to the extent appealed from as limited by the briefs, upon defendants’ motion to dismiss, dismissed plaintiffs’ breach of fiduciary duty cause of action as duplicative of their legal malpractice cause of action, unanimously affirmed, with costs.

Defendants’ alleged failure to disclose their legal malpractice does not give rise to a separate action for breach of fiduciary duty (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011]). Plaintiffs have not sufficiently alleged defendants’ overbilling to support a separate cause of action (cf. Cherry Hill Mkt. Corp. v Cozen O’Connor P.C., 118 AD3d 514, 514 [1st Dept 2014] [breach of fiduciary duty claim was not duplicative where, among other things, the plaintiffs alleged that the defendants had overbilled the plaintiffs]).

We have considered plaintiffs’ remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Andrias, Moskow-itz, Kahn and Gesmer, JJ.