Submitted - May 25, 2017.
Chester So, New York, NY, for appellant.
& Stallone, Deer Park, NY (Karl Zamurs of counsel), for
RANDALL T. ENG, P.J. JOHN M. LEVENTHAL SANDRA L. SGROI JOSEPH
J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for legal malpractice and breach of
contract, the plaintiff appeals from an order of the Supreme
Court, Kings County (Bayne, J.), dated May 25, 2016, which
granted the defendant's motion for summary judgment
dismissing the complaint.
that the order is modified, on the law, by deleting the
provision thereof granting that branch of the defendant's
motion which was for summary judgment dismissing the cause of
action to recover damages for legal malpractice, and
substituting therefor a provision denying that branch of the
motion; as so modified, the order is affirmed, with costs to
after a snowstorm, when attempting to enter the building in
which she lived, the plaintiff allegedly slipped on ice and
was injured. Three days after the accident, the plaintiff
consulted with and hired the defendant to represent her in an
action against the property owner. The defendant failed to
commence an action prior to the expiration of the statute of
limitations. The plaintiff then commenced this action to
recover damages for legal malpractice and breach of contract.
The defendant moved for summary judgment dismissing the
complaint, and the Supreme Court granted the motion.
establish the required element of causation in a legal
malpractice action, "a plaintiff must show that he or
she would have prevailed in the underlying action . . . but
for the lawyer's negligence" (Rudolf v Shayne,
Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442;
see Detoni v McMinkens, 147 A.D.3d 1018).
The only issue raised in the defendant's motion was
whether the plaintiff could have prevailed in a personal
injury action against the property owner.
landowner 'generally cannot be held liable for injuries
sustained as a result of slippery conditions that occur
during an ongoing storm, or for a reasonable time
thereafter'" (Weller vPaul, 91 A.D.3d 945,
947, quoting Mazzella v City of New York, 72 A.D.3d
755, 756; see Kantor v Leisure Glen Homeowners Assn.,
Inc., 95 A.D.3d 1177; Salvanti v Sunset Indus. Park
Assoc., 27 A.D.3d 546). "However, once a landowner
elects to engage in snow removal activities, it is required
to act with reasonable care so as to avoid creating a
hazardous condition or exacerbating a natural hazard created
by the storm" (Kantor v Leisure Glen Homeowners
Assn., Inc., 95 A.D.3d at 1177; see Salvanti v
Sunset Indus. Park Assoc., 27 A.D.3d at 546;
Chaudhry v East Buffet & Rest., 24 A.D.3d
the defendant failed to demonstrate his prima facie
entitlement to judgment as a matter of law dismissing the
cause of action to recover damages for legal malpractice on
the ground that the plaintiff could not have prevailed in an
action against the property owner. While the defendant
demonstrated, prima facie, through certified meteorological
data and the plaintiff's deposition testimony, that the
accident occurred less than one hour after the snowstorm
ceased, he did not eliminate triable issues of fact as to
whether the property owner created or exacerbated a hazardous
condition through negligent snow removal efforts (see
Anderson v Landmark at Eastview, Inc., 129 A.D.3d 750,
751; Salvanti v Sunset Indus. Park Assoc., 27 A.D.3d
at 546-547; Chaudhry v East Buffet & Rest., 24
A.D.3d at 494). In particular, in light of the plaintiffs
deposition testimony, a triable issue of fact exists as to
whether the property owner, upon clearing snow from a small
portion of the premises, had left a pile of snow that the
plaintiff had to "lift [her] leg" to
"cross" over, causing her to slip and fall.
Accordingly, that branch of the defendant's motion which
was for summary judgment dismissing the legal malpractice
cause of action should have been denied.
the Supreme Court properly awarded the defendant summary
judgment dismissing the breach of contract cause of action as
duplicative of the legal malpractice cause of action, since
it arose "from the same facts as those underlying the
legal malpractice cause of action, and [did] not allege
distinct damages" (Prott v Lewin ...