NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 24, 2009
ERNESTINE ENGLER, PLAINTIFF-RESPONDENT,
MARK KALMANOWITZ, ETC., ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 1, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
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.
Tom, J.P., Mazzarelli, Nardelli, Catterson, Moskowitz, JJ.
Defendants in this legal malpractice action demonstrated plaintiff could not prove that but for their alleged negligence, she would have prevailed on the merits in the underlying litigation (see e.g. Davis v Klein, 88 NY2d 1008 ). Plaintiff alleged that Celebrity Cruise Lines had an open seam in its carpet, which created a tripping hazard when pressure was applied from pedestrian traffic. She failed, however, by either her witnesses or her expert, to show that defendants had notice of this allegedly defective condition. Witnesses for both sides testified that this open seam was not visibly noticeable (see Cooper v Kelner & Kelner, 45 AD3d 323 ). Plaintiff's expert's attestation that the carpet's adhesive had lost its holding strength over time, causing the seam to open, was insufficient to establish notice, since it failed to show that the alleged defect was visible and apparent for a sufficient period of time to permit the ship operators to discover and remedy it (see Peffers v Hilton Hotels Corp., 279 AD2d 386 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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