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Oasis Sportswear, Inc v. Patricia Rego

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 26, 2013

OASIS SPORTSWEAR, INC.,
PLAINTIFF,
v.
PATRICIA REGO, ET AL.,
DEFENDANTS. [AND A THIRD-PARTY ACTION] PATRICIA REGO, ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS, CBIZ MAHONEY COHEN, INC., ETC., ET AL., THIRD-PARTY DEFENDANTS-RESPONDENTS.

Oasis Sportswear, Inc. v Rego

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 February 26, 2013

Friedman, J.P., Saxe, Moskowitz, DeGrasse, Roman, JJ.

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 [1st Dept 2001]). 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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 26, 2013

CLERK

20130226

© 1992-2013 VersusLaw Inc.



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