Plaintiff is injured in a motor vehicle accident at an intersection with an inoperative traffic light.  His attorney failed to commence the action within the statute of limitations.  Legal malpractice case is started and proceeds through summary judgment.  Supreme Court denies summary judgment to defendants who appeals.

In Reisner v Litman & Litman, P.C. 2012 NY Slip Op 03428   Decided on May 1, 2012   The Appellate Division, Second Department  reverses and issues a blanket finding that neither the County nor the Contractor "could" have been liable.  "In this case, in opposition to the defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether he could have prevailed had the defendants commenced a timely action on his behalf to recover damages for personal injuries against the County of Nassau. The County’s Department of Public Works determined, in September 2003, that the traffic signal at the intersection where the plaintiff allegedly was injured in an accident should be rebuilt. However, the signal work was not completed until August 11, 2004. The plaintiff’s accident occurred on July 18, 2004. Contrary to the determination of the Supreme Court, under the circumstances, the County was immune from liability under the doctrine of qualified immunity (see Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7 NY2d 579, 584), as the County’s delay in the rebuilding and installation of the traffic signal was not unreasonable in the context of the County’s attempts to remedy a known dangerous highway condition once the decision was made to rebuild (see Friedman v State of New York, 67 NY2d at 284; cf. Bresciani v County of Dutchess, N.Y., 62 AD3d 639, 640; Witkowski v Escobar, 28 AD3d 543, 544; Onorato v City of New York, 258 AD2d 633, 634).

In the amended complaint, the plaintiff did not plead a cause of action to recover damages for legal malpractice on the ground that the defendants failed to commence a personal injury action against the County’s contractor, Welsbach Electric Corp. (hereinafter Welsbach) (cf. Boyle v Marsh & McLennan Cos., Inc., 50 AD3d 1587, 1588). Nevertheless, the Supreme Court concluded that there was a triable issue of fact as to whether the plaintiff could have successfully commenced a personal injury action against Welsbach. The Supreme Court erred in addressing, sua sponte, Welsbach’s potential liability. In any event, for the same reasons set forth herein with regard to the County, the plaintiff could not have prevailed had the defendants commenced a timely action on his behalf to recover damages for personal injuries against Welsbach.