Duffy-Duncan v Berns & Castro

Duffy-Duncan v Berns & Castro 2007 NY Slip Op 09493 [45 AD3d 489] November 29, 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

Hamilton Duffy-Duncan, Respondent,
v
Berns & Castro et al., Appellants.

—[*1] Melito & Adolfsen P.C., New York City (John H. Somoza of counsel), for appellants.

The Cochran Firm, Weitz, Kleinick & Weitz, LLP, New York City (Stewart G. Milch of counsel), for respondents.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered November 22, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action for legal malpractice, where defendants' admitted failure to timely serve a notice of claim on the New York City Transit Authority (NYCTA) precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on an elevated subway platform. Defendants failed to make a prima facie showing that despite its failure to file a timely notice of claim on NYCTA, plaintiff could not have prevailed in the underlying action (see Boarman v Siegel, Kelleher & Kahn, 41 AD3d 1247 [2007]). The record evidence demonstrates that because of the lack of discovery conducted in the underlying action, it cannot be discerned whether NYCTA had actual notice of the defective condition. Nor did defendants establish that NYCTA lacked constructive notice of the condition on the subject platform. The certified climatological reports submitted by defendants, and unaccompanied by an expert opinion, were insufficient to demonstrate a lack of constructive notice inasmuch as the reports, evidencing temperature readings hovering around the freezing mark in the hours leading up to plaintiff's fall, were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx (see Ralat v New York City Hous. Auth., 265 AD2d 185, 186 [1999]). [*2]

We have considered defendants' remaining contentions and find them unavailing. Concur—Lippman, P.J., Nardelli, Buckley, Gonzalez and Sweeny, JJ.