Risman v. Leader

256 A.D.2d 1245, 683 N.Y.S.2d 462, 1998 N.Y. App. Div. LEXIS 14454

Opinion

—Judgment and order unanimously affirmed without costs. Memorandum: The complaint in this legal malpractice action asserts causes of action for breach of contract and negligence arising out of an alleged conflict of interest and breach of fiduciary duty. Supreme Court granted defendant’s motion for summary judgment on the ground that the complaint seeks damages for emotional distress or psychic injury only, and such damages are not recoverable in a legal malpractice action based on breach of contract or negligence (see, Dirito v Stanley, 203 AD2d 903; Green v Leibowitz, 118 AD2d 756). However, plaintiffs bill of particulars also seeks damages for economic loss allegedly sustained as a result of the sale of the marital residence. We nevertheless affirm because defendant met his initial burden of demonstrating the absence of any triable issues of fact with respect to damages arising out of the sale of the marital residence, and plaintiff failed to submit evidence of any damages other than those related to emotional and psychic injuries. (Appeal from Judgment and Order of Supreme Court, Erie County, Gorski, J.— Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.