Catalano Gallardo & Petropoulos, LLP, Jericho, NY
(Matthew K. Flanagan and Jessica L. Smith of counsel), for
Edelsteins, Faegenburg & Brown LLP, New York, NY (Louis
A. Badolato of counsel), for respondent.
M. LEVENTHAL, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for legal malpractice,
the defendants appeal, as limited by their brief, from so
much of an order of the Supreme Court, Kings County (F.
Rivera, J.), dated October 9, 2015, as denied that branch of
their motion which was for summary judgment dismissing the
second amended complaint.
that the order is modified, on the law, by deleting the
provision thereof denying those branches of the
defendants' motion which were for summary judgment
dismissing the second and third causes of action in the
second amended complaint, and substituting therefor a
provision granting those branches of the defendants'
motion; as so modified, the order is affirmed insofar as
appealed from, without costs or disbursements.
August 10, 2009, the plaintiff allegedly sustained injuries
when he fell from a ladder while working on a light fixture
at Medgar Evers College Prep School (hereinafter MECPS) in
Brooklyn (hereinafter the subject premises). MECPS is a New
York City school and the subject premises were owned by the
Dormitory Authority of the State of New York (hereinafter
DASNY). In September 2009, the plaintiff retained the
defendants to represent him in his personal injury action
predicated on common-law negligence and violations of Labor
Law §§ 200, 240(1), and 241(6). It is undisputed
that the defendants did not pursue an action against DASNY
and the plaintiff's time to commence such an action
expired (see CPLR 217-a).
filing a summons and complaint on November 20, 2012, the
plaintiff commenced this action alleging, inter alia, legal
malpractice based on the defendants' failure to commence
an action against all legally responsible entities. On or
about November 29, 2012, the plaintiff served an amended
complaint to include the individually named defendants. On or
about February 14, 2014, the plaintiff served a second
amended complaint alleging three causes of action. The first
cause of action alleged legal malpractice based on the
defendants' failure to timely commence an action against
DASNY. The second cause of action alleged, in effect, general
negligence, and the third cause of action alleged breach of
contract. Thereafter, the plaintiff moved for summary
judgment on the issue of liability on his legal malpractice
cause of action, arguing that but for the defendants'
negligence he would have prevailed on a personal injury cause
of action against DASNY for violation of Labor Law §
240(1). The defendants cross-moved, inter alia, for summary
judgment dismissing the second amended complaint. The
defendants argued that the plaintiff did not have a viable
cause of action against DASNY for common-law negligence or
violations of Labor Law §§ 200, 240(1), and 241(6).
The defendants further argued that the plaintiff's second
and third causes of action in the second amended complaint
should be dismissed because they were duplicative of the
legal malpractice cause of action. The Supreme Court denied
the motion and cross motion, and the defendants appeal.
Supreme Court properly denied that branch of the
defendants' motion which was for summary judgment
dismissing the legal malpractice cause of action. "The
proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material
issues of fact from the case" (Winegrad v New York
Univ. Med. Ctr., 64 N.Y.2d 851, 853). "To state a
cause of action to recover damages for legal malpractice, a
plaintiff must allege: (1) that the attorney failed to
exercise the ordinary reasonable skill and knowledge commonly
possessed by a member of the legal profession, and (2) that
the attorney's breach of the duty proximately caused the
plaintiff actual and ascertainable damages" (Marino
v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria,
LLP, 87 A.D.3d 566, 566 [internal quotation marks
omitted]; see Leder v Spiegel, 9 N.Y.3d 836, 837;
Wray v Mallilo & Grossman, 54 A.D.3d 328,
328-329). "To establish causation, a plaintiff must show
that he or she would have prevailed in the underlying action
or would not have incurred any damages, but for the
attorney's negligence" (Wray v Mallilo &
Grossman, 54 A.D.3d at 329; see Marino v Lipsitz,
Green, Fahringer, Roll, Salibury & Cambria, LLP, 87
A.D.3d at 566). Thus, "[a] defendant moving for summary
judgment in a legal malpractice action must... establish
prima facie that the plaintiff cannot prove at least one of
the essential elements of the malpractice claim"
(Wray v Mallilo & Grossman, 54 A.D.3d at 329;
see Marino v Lipsitz, Green, Fahringer, Roll, Salibury
& Cambria, LLP, 87 A.D.3d at 566). Here, although
the defendants established, prima facie, that the plaintiff
would not have prevailed on a personal injury action against
DASNY for common-law negligence or violations of Labor Law
§§ 200 and 241(6) (see Labor Law
§§ 200, 241; Feliz v Klee & Woolf,
LLP, 138 A.D.3d 920, 921; Pilato v 866 U.N. Plaza
Assoc., LLC, 77 A.D.3d 644, 645-646), they failed to
establish the same as to the viability of a Labor Law §
240(1) cause of action.
prevail on a cause of action under Labor Law § 240(1), a
plaintiff must establish, among other things, that he or she
was injured during the "erection, demolition, repairing,
altering, painting, cleaning or pointing of a building or
structure" (Labor Law § 240; see Moreira v
Ponzo, 131 A.D.3d 1025, 1026; Enos v Werlatone,
Inc., 68 A.D.3d 713, 714). In determining whether a
particular activity constitutes "repairing, "
courts are careful to distinguish between repairs and routine
maintenance, the latter falling outside the scope of section
240(1) (see Esposito v New York City Indus. Dev.
Agency, 1 N.Y.3d 526, 528; Joblon v Solow, 91
N.Y.2d 457, 465; Smith v Shell Oil Co., 85 N.Y.2d
1000, 1002). Generally, courts have held that work
constitutes routine maintenance where the work involves
"replacing components that require replacement in the
course of normal wear and tear" (Esposito v NY City
Indus. Dev. Agency, 1 N.Y.3d at 528; see Mammone v
T.G. Nickel & Assoc. LLC, 144 A.D.3d 761, 761).
the defendants' own submissions failed to eliminate
triable issues of fact as to whether the plaintiff was
engaged in "repair[s]" at the time of his accident
or whether he was engaged in routine maintenance. On the one
hand, the defendants submitted evidence establishing that the
plaintiff was changing a ballast in a light fixture at the
time of his accident, a job which constitutes routine
maintenance since the replacement of this component occurs in
the course of normal wear and tear (see Konaz v St.
John's Preparatory Sch., 105 A.D.3d 912, 913;
Monaghan v 540 Inv. Land Co. LLC, 66 A.D.3d 605,
605; Deoki v Abner Props. Co., 48 A.D.3d 510;
Sanacore v Solla, 284 A.D.2d 321). However, the
defendants also submitted the plaintiff's deposition
testimony in support of their motion. The plaintiff testified
at his deposition that he was in the midst of disconnecting,
splicing, cleaning, and assessing the internal electrical
wires in order to fix a light fixture when he fell from the
ladder. Thus, the plaintiff's deposition testimony
demonstrated the existence of a triable issue of fact as to
whether the plaintiff was "repairing" the light
fixture at the time of his accident (see Nowakowski v
Douglas Elliman Realty, LLC, 78 A.D.3d 1033, 1034;
Eisenstein v Board of Mgrs. of Oaks at La Tourette
Condominium Sections I-IV, 43 A.D.3d 987, 988;
Fitzpatrick v State of New York, 25 A.D.3d 755, 757;
Piccione v 1165 Park Ave., 258 A.D.2d 357, 358).
Accordingly, the Supreme Court properly denied that branch of
the defendants' motion which was for summary judgment
dismissing the legal malpractice cause of action, regardless
of the sufficiency of the opposing papers (see Winegrad v
New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
defendants are correct, however, that the Supreme Court erred
in denying those branches of their motion, which were
unopposed, for summary judgment dismissing the second and
third causes of action as duplicative of the legal
malpractice cause of action (see Mecca v Shang, 258
A.D.2d 569, 570; Sage Realty Corp. v Proskauer Rose,
251 A.D.2d 35; CVC Capital Corp. v Weil, Gotshal,
Manges, 192 A.D.2d 324, 324-325; cf. Rupolo v
Fish, 87 A.D.3d 684, 685-686; Reidy v Martin,
77 A.D.3d 903). Accordingly, the court should have awarded
summary judgment dismissing the second and third causes of
action in the second amended complaint.
defendants' remaining contentions are without merit.
LEVENTHAL, J.P., BARROS, CONNOLLY and BRATHWAITE ...