Oasis Sportswear, Inc. v. Rego

103 A.D.3d 569, 962 N.Y.S.2d 70

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2013
• Status: Published

Opinion

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 AD2d 101, 109 [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 AD2d at 108-109). Accordingly, third-party plaintiffs failed to allege third-party beneficiary status (see Mendel v Henry Phipps Plaza W, Inc., 6 NY3d 783, 786 [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. Concur—Friedman, J.P., Saxe, Moskowitz, DeGrasse and Roman, JJ. [Prior Case History: 2012 NY Slip Op 30218(U).]