The case of Palmieri v. Biggiani makes for some fascinating reading, involving a car accident, disagreement between the victim and his own lawyer, and eventually a deteriorating relationship that culminated in allegations of fraud, malpractice, and yes, even breach of contract. The eventual disposition of the case was a relatively simple opinion by the Appellate Division of the Supreme Court of New York, second department – but it still helps educate us about what legitimate claims for breach of contract actually entail.
Background of the Case
The plaintiff, Palmieri, was injured in a car accident and, as most of us might do, hired a lawyer to represent him - in this case the attorney was Biggiani. Biggiani worked on the case for some time, but then received some bad news – the other side’s insurance company refused to settle, and would fight the case in court.
Biggiani felt that hiring an expert witness to testify in court was necessary to win his case. He advised Palmieri to hire this witness directly, and pay him out-of-pocket. Palmieri refused, for reasons we do not know. Feeling that he had irreconcilable differences with his client about trial strategy, Biggiani sought to withdraw from the case, via a motion to the court. The motion was granted and Biggiani was allowed to withdraw.
However, Palmieri claimed that he never received notice that his attorney was trying to withdraw from the case. He claimed he was harmed by this because he defaulted on this personal injury case and lost. Several things then happened. The court rescinded the default judgment against Palmieri (apparently having one’s attorney withdraw without receiving notice of it is one of the few ways to reverse a default judgement). Biggiani then made a second motion, with notice, to withdraw, which was granted, and simultaneously a substitute attorney was found to represent Palmieri.
As things played out, Palmieri eventually lost his personal injury case. Palmieri then sued his former attorney, Biggiani, under several causes of action including legal malpractice, fraud, breach of contract, and “tortious breach of contract,” alleging that one or more of these causes of action had caused the dismissal of the underlying personal injury case.
The court first reinstated the cause for malpractice, stating the lower court did not have enough evidence to dismiss it. However the court also stated the causes of action for fraud and breach of contract would remain dismissed because they were ‘duplicative’ of the charge of malpractice, arose out of the same underlying fact, and do no allege distinct damages. This is an important point to note. The plaintiff here was typical in that he alleged the broadest number of possible allegations arising out of a single occurrence. The court was not fooled and focused only on the strongest credible allegation – that of malpractice. So sometimes a claim for breach of contract may be defeated simply by realizing that the plaintiff is employing this form of litigation tactic and not alleging distinct damages.
The court, reading between the lines, found the claim for “tortious breach of contract” rather amusing. Such a cause of action does not exist in New York – as previously discussed on this blog. A simple breach of contract cannot amount to a tort.
When embroiled in any dispute it is imperative to hire competent counsel who has experience with the subtleties of litigation. Breach of contract is a particularly common allegation and it is important to hire an attorney who understands the relative seriousness of the allegation. Please do not hesitate to contact our office for a consultation.