One really can’t tell from the decision, but this appears to be a personal injury – motor vehicle case in NYC with a blown statute.  The decision in Greene v Sager   2011 NY Slip Op 50688(U)   Decided on April 19, 2011   Supreme Court, Kings County   Rivera, J. sets forth the various standards for a summary judgment motion, for legal malpractice, and describes, in great detail, the various evidentiary offers of the parties.  In the end, no SJ for plaintiff.
 

"On November 20, 2007, plaintiff filed a summons and verified complaint which alleged twenty-seven allegations of fact in support of a cause of action for legal malpractice by the defendants. In sum and substance, the complaint alleges the following salient facts. The defendants are part of a firm licensed to practice law in the State of New York. On July 26, 2003, the defendants agreed to represent plaintiff in a claim for damages for personal injuries sustained on July 23, 2003. The defendants allegedly failed to file necessary law suit papers within the statutory time period thereby preventing plaintiff from recovering damages for her alleged injuries.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72, 760 N.Y.S.2d 397 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923, 597 N.Y.S.2d 653 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 NY2d at 324). [*4]

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Alizio v. Feldman, __ AD3d __, 918 N.Y.S.2d 218 [2nd Dept., 2011]; see, Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 N.Y.S.2d 534 [2007]). "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 lawyer’s negligence" (id).

"Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Healy v. Finz & Finz, __ AD3d __ [2nd Dept., 2011]; citing, Northrop v. Thorsen, 46 AD3d 780, 782, 848 N.Y.S.2d 304 [2nd Dept., 2007]).

CPLR 214 (5) imposes a three-year limitation period, with certain exceptions, on "an action to recover damages for a personal injury." (See, Giordano v. Market Am., Inc., 15 NY3d 590, 915 N.Y.S.2d 884 [2010])

The elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (Lapidus v. State, 57 AD3d 83, 866 N.Y.S.2d 711 [2nd Dept., 2008]). "To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" (Scott v. Beverly Hills Furniture, 30 AD3d 577, 578, 817 N.Y.S.2d 381 [2nd Dept., 2006]; citing Goldman v. Waldbaum, 248 AD2d 436, 669 N.Y.S.2d 669 [2nd Dept., 1999]). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (Larsen v. Congregation B’Nai Jeshurum of Staten Island, 29 AD3d 643, 815 N.Y.S.2d 187 [2nd Dept., 2006]). "