SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
603
CA 14-01999
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.
RICH PRODUCTS CORPORATION,
PLAINTIFF-APPELLANT-RESPONDENT,
V MEMORANDUM AND ORDER
KENYON & KENYON, LLP,
DEFENDANT-RESPONDENT-APPELLANT.
HODGSON RUSS LLP, BUFFALO (ROBERT J. LANE, JR., OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.
HISCOCK & BARCLAY, LLP, BUFFALO (DENNIS R. MCCOY OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT.
Appeal and cross appeal from an order of the Supreme Court, Erie
County (Timothy J. Walker, A.J.), entered June 19, 2014. The order
granted in part defendant’s motion for summary judgment and dismissed
the first, second and fourth causes of action, and granted that part
of plaintiff’s cross motion for partial summary judgment on liability
with respect to the third cause of action.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s cross motion in
its entirety and as modified the order is affirmed without costs.
Memorandum: In this legal malpractice and breach of contract
action, plaintiff appeals and defendant cross-appeals from an order
that granted in part defendant’s motion for summary judgment and
dismissed the first, second and fourth causes of action, and granted
that part of plaintiff’s cross motion for partial summary judgment on
liability with respect to the third cause of action. Plaintiff
retained defendant to file and prosecute domestic and international
patent applications for its invention of a nondairy pourable dessert
product (hereafter, invention). Mexican authorities issued a patent
for plaintiff’s invention, but a Mexican competitor successfully
obtained its invalidation seven years after issuance on the ground
that the application was not filed within 30 months of the priority
date, a decision that was upheld on appeal. Although defendant had
also applied for a patent for plaintiff’s invention in Colombia with
the assistance of local counsel, the application was denied.
Plaintiff commenced this action, asserting in the first and second
causes of action of the amended complaint that defendant committed
malpractice by “carelessly failing to timely file the Mexican national
phase application of the invention” and breached its contract with
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CA 14-01999
plaintiff by “failing to timely file the Mexican national phase
application.” Plaintiff asserted in the third and fourth causes of
action that defendant committed malpractice by “carelessly failing to
file the proper documents in Colombia . . . and carelessly failing to
timely file the additional required documents in Colombia,” and that
defendant breached its contract with plaintiff by “failing to file the
proper documents in Colombia, and failing to timely file the
additional required documents in Colombia.”
We note at the outset that, although plaintiff’s notice of appeal
states, inter alia, that plaintiff is appealing from those parts of
the order granting defendant’s motion to the extent that it sought
summary judgment dismissing the first, second and fourth causes of
action, plaintiff did not raise any contention in its brief with
respect to the dismissal of the fourth cause of action and thus has
abandoned any contention with respect to that cause of action (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984).
Contrary to plaintiff’s contention, Supreme Court properly
granted defendant’s motion with respect to the first cause of action
because the record establishes that defendant did not commit legal
malpractice at the time of the representation. The patent was
cancelled seven years after it was issued due to a retroactive change
in Mexican law, and it is well settled that an attorney’s
representation is “measured at the time of representation” (Darby &
Darby v VSI Intl., 95 NY2d 308, 313). In support of its motion,
defendant submitted the affidavit of an expert on Mexican patent law
establishing that the application was timely when it was filed. We
conclude that plaintiff failed to raise a triable issue of fact in
opposition to that part of defendant’s motion (see generally Zuckerman
v City of New York, 49 NY2d 557, 562).
We further conclude that the court properly granted defendant’s
motion with respect to the second cause of action, for breach of
contract, because it was duplicative of the malpractice cause of
action (see Long v Cellino & Barnes, P.C., 59 AD3d 1062, 1062). We
likewise conclude that the court properly denied plaintiff’s motion
for leave to serve a second amended complaint, because plaintiff
sought only to add duplicative claims (see generally Matter of HSBC
Bank U.S.A. [Littleton], 70 AD3d 1324, 1325, lv denied 14 NY3d 710).
We agree with defendant on its cross appeal, however, that the
court erred in granting that part of plaintiff’s cross motion for
partial summary judgment on liability on the third cause of action.
Plaintiff failed to meet its initial burden with respect to that part
of the cross motion, inasmuch as plaintiff failed to submit an
affidavit from an expert on Colombian patent law concerning the
interpretation of the Colombian legal documents and laws (see Sea
Trade Mar. Corp. v Coutsodontis, 111 AD3d 483, 484-485; Warin v
Wildenstein & Co., 297 AD2d 214, 215; Jann v Cassidy, 265 AD2d 873,
874-875). We therefore modify the order accordingly.
Entered: May 8, 2015 Frances E. Cafarell
Clerk of the Court