Aquino v Kuczinski, Vila & Assoc., P.C.
2007 NY Slip Op 02801
Decided on April 3, 2007
Appellate Division, First Department
Here is a legal malpractice case arising from defendant’s failure to bring a slip and fall case within the statute of limitations. Legal Mal case lost becasue attorneys did not produce evidence that plaintiff would have won. Evidence would have to show that casino had constructive notice of defective condition causing slip and fall.
"The issue in this legal malpractice action is whether plaintiff established that "but for" the negligence of defendants in failing to timely commence a personal injury action on her behalf, she would have prevailed in that litigation. On July 4, 2002, plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She alleges that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit.
In the case at bar, plaintiff failed to introduce any evidence that the casino either created the dangerous condition, or had actual or constructive knowledge of it (see Mercer, 88 NY2d at 956). Plaintiff admitted in both her affidavit and deposition testimony that she has no information regarding how long the vomit was on the lobby floor prior to her accident, thus negating any possibility of proving constructive notice"
"In the final analysis, defendants’ negligence in failing to investigate plaintiff’s case and timely commencing an action does not relieve plaintiff of her burden of proving that she would have prevailed in that litigation but for defendants’ negligence (see Brooks v Lewin, 21 AD3d 731, 734 , lv denied 6 NY3d 713 ; Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 67  ["[A] failure to establish proximate cause requires dismissal regardless of whether negligence is established"]). "