Cooper v Kelner & Kelner

Cooper v Kelner & Kelner 2007 NY Slip Op 08381 [45 AD3d 323] November 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Vola Cooper et al., Appellants,
v
Kelner & Kelner et al., Respondents.

—[*1] Law Offices of David J. Clegg, Kingston (David J. Clegg of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondents.

Judgment, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered August 23, 2006, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered August 4, 2006, which granted defendants' motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants demonstrated prima facie entitlement to judgment in this legal malpractice action by showing plaintiffs could not prove that but for defendants' alleged negligence, plaintiffs would have succeeded in the underlying litigation (see e.g. Leder v Spiegel, 9 NY3d 836 [2007]; Reibman v Senie, 302 AD2d 290 [2003]). Plaintiffs speculated that Carnival Cruise Lines had notice of an allegedly unsecured and loose carpet edge abutting the linoleum, which posed a tripping hazard when pressure was applied by the weight of pedestrian traffic; this was insufficient to raise an issue of fact (see Hagood v City of New York, 13 AD3d 413 [2004]). Concur—Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.