This is a fairly simple and straightforward legal malpractice case. Worker falls from a ladder while working on an electrical light during construction. Law firm fails to sue the owner, which in this case is the Dormitory Authority of the State of NY. Nevertheless, summary judgment fails for both sides. Here is the story in Ferrigno v Jaghab, Jaghab & Jaghab, P.C. 2015 NY Slip Op 51491(U) Decided on October 7, 2015 Supreme Court, Kings County Rivera, J.
“The complaint sets forth forty-five allegations of fact in support of three causes of action. The first and second causes of action sound in legal malpractice. The third cause of action is for breach of contract. The summons and complaint allege that on August 10, 2009, plaintiff suffered injuries when he fell from an A-frame ladder after sustaining an electrical shock. At the time of the incident plaintiff was performing repairs to a light fixture at Medgar Evers College Prep School (hereafter MECPS), located at 1186 Carroll St., Brooklyn, New York (hereafter “the premises”). The premises is owned by the Dormitory Authority of the State of New York (hereafter DASNY). Prior to October 21, 2009, plaintiff retained Jaghab, P.C. to pursue an action to recover damages for those personal injuries.
The crux of plaintiff’s claim is that the defendants failed to include DASNY in the notice of claim as a defendant and therefore failed to bring a cause of action against a liable party. Plaintiff alleges that, had the defendants brought an action against DASNY, he would have prevailed under an action pursuant to Labor Law § 200, 240 (1), and 241(6).”
“Plaintiff relies solely on the fact that defendants failed to bring a claim against DASNY under Labor Law § 240 (1) in support of the allegation that defendants breached their duty to him. The following factors are not controverted. Defendants did not include DASNY in the notice of claim. Defendants failed to bring a claim against DASNY on plaintiff’s behalf. DASNY owned the premises at the time of plaintiff’s accident. Plaintiff is precluded from bringing an action against DASNY due to the failure to include DASNY in the notice of claim.
Plaintiff must establish that DASNY was a liable party and that he would have prevailed on the underlying claim against DASNY under Labor Law § 240 (1) to prevail on the motion.
In support of the motion the plaintiff submitted his deposition. Plaintiff testified that he was engaged in repairing a lighting fixture when he received an electric shock and [*5]fell from an A-frame ladder. This establishes, prima facie, that plaintiff was within the protective ambit of Labor Law § 240(1) at the time of the accident (see Eisenstein v Board of Mgrs. Of Oaks at La Tourette Condominium Sections I-IV, 43 AD3d 987, 842 NYS2d 72). As mentioned above, Labor Law § 240 (1) creates a nondelegable duty and absolute liability upon owners for failure to provide proper safety devices for workers subject to elevation-related risks (see Labor Law § 240 [1]). Accordingly, plaintiff meets his prima facie burden on legal malpractice by establishing that the defendants failed to sue DASNY when they were the owners of the premises where the accident occurred and that plaintiff’s activity was work contemplated within the protective ambit of Labor Law § 240 (1).
The burden now shifts to the defendant to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v Pleasantville Union Free School Dist., 28 AD3d 419, 811 NYS2d 573 [2nd Dept 2006]). In opposition to plaintiff’s motion for summary judgment, defendants raise a triable issue of fact regarding whether plaintiff was engaged in an activity protected by Labor Law § 240 (1). Defendants submit the notice of claim to the City of New York. The notice of claim is signed and sworn to by the plaintiff as well as notarized. In pertinent part plaintiff states therein that he was “changing an overhead ballast” at the time of the accident. “[T]he task of replacing a ballast in a fluorescent light fixture falls within the category of routine maintenance” (Deoki v Abner Props. Co., 48 AD3d 510, 510). Work that “involve[s] replacing components that require replacement in the course of normal wear and tear… constitute[s] routine maintenance and not ‘repairing’ or any of the other enumerated activities” (Esposito v New York City Indus. Development Agency, 1 NY3d 526) and, therefore, is not protected activity under Labor Law § 240 (1).
As the motion papers contain different versions of the accident a triable issue of fact exists as to whether the plaintiff was engaged in work covered by Labor Law § 240 (1). Accordingly, plaintiff’s motion for summary judgment must be denied on these grounds.”