Oasis Sportswear, Inc. v. Rego — 103 A.D.3d 569

Majority

p. 569

Oasis Sportswear, Inc., Plaintiff, v Patricia Rego et al., Defendants. (And a Third-Party Action.) Patricia Rego et al., Third-Party Plaintiffs-Appellants, v CBIZ Mahoney Cohen, Inc., Formerly Known as Mahoney Cohen & Company, et al., Third-Party Defendants-Respondents.

[962 NYS2d 70]

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.

p. 570

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).]

Cases cited

Lasalle National Bank v. Ernst & Young L. L. P. 285 AD2d 101 N.Y. App. Div. 2001-08-09 at 109 p. 569
Mendel v. Henry Phipps Plaza West, Inc. 6 NY3d 783 N.Y. 2006-02-09 at 786 p. 569