In action to recover damages for legal malpractice, the Supreme Court, Richmond County, Sangiorgio, J., denied defendants' motion to strike action from trial calendar and/or to preclude plaintiff from offering expert testimony, and defendants appealed. The Supreme Court, Appellate Division, held that under circumstances that plaintiff's sole claim was that defendants breached contract to include specific provision in "buy-sell" agreement, expert testimony was not required to establish prima facie case of legal malpractice.

Affirmed.

[1] Pretrial Procedure k46
307Ak46

[1] Pretrial Procedure k435
307Ak435

Action to recover damages for legal malpractice would not be stricken from trial calendar based on plaintiff's failure to respond to defendants' notice for discovery and inspection regarding expert witnesses where plaintiff's counsel indicated that he did not intend to retain expert for his direct case and plaintiff's allegation that defendants failed to draft particular contract provision rested on principles of contract and agency, rather than negligence, obviating need for expert testimony to establish prima facie case of legal malpractice.

[2] Attorney and Client k129(2)
45k129(2)

Client who alleged in his legal malpractice action that his former attorneys breached their contract with him to include a specific provision in a "buy- sell" agreement was not required to present expert testimony to establish a prima facie case; the claim rested on principles of contract and agency rather than negligence.

[3] Estoppel k68(2)
156k68(2)

Plaintiff who acknowledged in brief on appeal that his sole claim in action for legal malpractice was that defendants breached contract with him to include specific provision in "buy-sell" agreement would be limited at trial to that theory, despite broad language in complaint and bill of particulars alleging professional negligence. **295 Viscardi, Steinman & Basner, P.C., Jamaica (Norman Basner, of counsel), for appellants.

Weg & Meyers, P.C., New York City (Dennis T. D'Antonio and Joshua L. Mallin, of counsel), for respondent.

Before MANGANO, P.J., and PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

*354 In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated October 21, 1991, which denied their motion to strike the action from the trial calendar and/or to preclude the plaintiff from offering any expert testimony upon the trial of the action.

ORDERED that the order is affirmed, with costs.

[1][2] The defendants' motion, inter alia, to strike the action from the trial calendar was based on the plaintiff's failure to respond to their notice for discovery and inspection regarding expert witnesses. However, the plaintiff's counsel expressly indicated that he "does not intend to retain an expert for his direct case". Moreover, the plaintiff's action to recover damages for legal malpractice is based on the allegation that the defendants agreed to the plaintiff's request to draft a particular contract provision for the plaintiff which would achieve a specific result and the defendants failed to draft that provision. Under these circumstances, expert testimony is not required toestablish a prima facie case of legal malpractice, since such an allegation rests on principles of contract and agency, rather than negligence (see, Olfe v. Gordon, 93 Wis.2d 173, 286 N.W.2d 573; Jarnagin v. Terry, 807 S.W.2d 190 [Mo.App.] ). Indeed, the defendants concede in their brief that "[i]f the Plaintiff's sole claim herein is for breach of expressed promise to achieve a specific result then * * * expert testimony is not necessary to make out a prima facie case on this theory".

[3] Despite broad language in the complaint and the bill of particulars which alleges professional negligence on the part of the defendants, the plaintiff acknowledges in his brief on appeal that his sole claim in the instant action is that the defendants breached their contract with him to include a specific provision in a "buy-sell" agreement. Accordingly, the plaintiff should be limited at trial to this particular theory of liability.