Genesis Merchant Partners, LP v. Gilbride, Tusa, Last & Spellane LLC , 149 A.D.3d 469 ( 2017 )

Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC (2017 NY Slip Op 02753)

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

2017 NY Slip Op 02753

Decided on April 11, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 11, 2017
Sweeny, J.P., Andrias, Moskowitz, Kahn, Gesmer, JJ.

3663 653145/14

[*1]Genesis Merchant Partners, LP, et al., Plaintiffs-Appellants,

v

Gilbride, Tusa, Last & Spellane LLC, et al., Defendants-Respondents.

Law Office of Wallace Neel, P.C., New York (Wallace Neel of counsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Thomas A. Leghorn of counsel), for respondents.

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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 11, 2017

CLERK