Johnson v Watts 2023 NY Slip Op 32825(U) August 14, 2023 Supreme Court, Kings County Docket Number: Index No. 502133/2018 Judge: Peter P. Sweeney is a textbook example of a legal malpractice claim. Client severs her finger in a door accident and sues the municipal landlord. The attorney fails timely to file the notice of claim and then handles the 50-h hearings. The PI case is dismissed on notice grounds. Client sues the attorney.
“The plaintiff commenced this action against the defendant sounding in legal malpractice alleging that the defendant failed to preserve her claim for personal injuries against the New York City Housing Authority (“NYCHA”) by failing to serve it with a timely notice of claim. The plaintiff resides in an apartment located within a NYCHA facility and claims that when she was leaving her apartment to go to work on the June 14, 2012, the front door to the apartment slammed on her left hand and severed the tip of her middle finger. The plaintiff commenced an action against NYCHA claiming that it was negligent in failing to maintain the door in a reasonably safe condition
After the defendant commenced the action on plaintiff’s behalf, NYCHA moved to
dismiss the action due to plaintiff’s failure to timely file a notice of claim.1 The motion was granted. The defendant now seeks summary judgment dismissing this action claiming that the plaintiff cannot show that NYCHA’s negligence caused the accident.
In support of the motion, the defendant relies primarily on the testimony that the plaintiff gave at a 50H hearing concerning the accident and various NYCHA work records. At the 50H hearing, the plaintiff testified that on October 6, 2008, and on March 29, 2010, she had phoned the NYCHA rent office or management office to complain about her apartment door slamming too hard. The work records of NYCHA that were submitted on the motion, however, do not document these calls or any other calls regarding complaints about the door slamming too hard. The work records also reveal that on July 11, 2011, a NYCHA employee checked plaintiff’s front door and found it to be in satisfactory condition. The plaintiff signed off on the work order without making any written comment in the work order about any problem that she was having
with the door.”
“The only argument advanced by the defendant in support of the motion is that she would not have prevailed in the underlying action. To be awarded summary judgment, it was incumbent upon the defendant to submit admissible evidence demonstrating this fact as a matter of law. Here, plaintiff’s 50H testimony did not demonstrate, as a matter of law, that the door to her apartment was reasonably safe on the day of the accident, or that NYCHA lacked actual or constructive knowledge of the alleged defective condition. Indeed, plaintiff’s testimony documents that she made complaints about the door to NYCHA prior to the occurrence raising triable issues of fact as to whether had actual and/or constructive notice that the door was defective. It will be up to a jury to decide whether her testimony concerning her prior complaints are credible given the fact that they were not documented. Indeed, plaintiff’s 50H testimony did
not even demonstrate as a matter of law that NYCHA did not create the alleged dangerous condition.
Further, since the defendant did not submit an affidavit from a person with personal
knowledge that the work records he relies on constituted NYCHA’s business records, the records were inadmissible and may not be considered. Even if they considered, they do not establish, as a matter of law, that NYCHA’s freedom from liability.”
“Turning to the cross-motion, to prevail in an action to recover damages for legal
malpractice, not only must a plaintiff establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, the plaintiff must also establish that the attorney’s breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). 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 (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Davis v. Klein, 88 N.Y.2d 1008, 1009–1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268; Lamanna v. Pearson
& Shapiro, 43 A.D.3d 1111, 843 N.Y.S.2d 143; Cohen v. Wallace & Minchenberg, 39 A.D.3d 691, 835 N.Y.S.2d 285). Here, there are triable issues of fact as to whether the plaintiff would have prevailed in the underlying action but for the defendant’s negligence. The cross-motion must therefore be denied.”