Angeles v Aronsky

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Angeles v Aronsky 2012 NY Slip Op 30851(U) April 2, 2012 Sup Ct, NY County Docket Number: 100091/2009 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON41512012 [* 1] . .. -.. . . . __ .. . _ .. PART Index Nurnbw: 1 ~ ANc3ELE8, MANUEL l ~ O B vs. , ARONSKY,JEFFREYA , SUMMARYJUDQMENT I 8EQUENCENUMBER:OlX I I - -- - .- I to [* 2] DmaImIon and Order Index No.: lOOOSl/ZOOS seq NO.: 005 Plaintiff, Present : Bon. J a t h -againet- J. U ~ O G ~ J.S.C. J e f f r e y A. z~~onsJcy, [a] of the paperer eonsidared in the -review of this (these) motion ( 8 ) : Papers ........................ Aronsky n/m (3212) w/JaB, JAA, AM, AK affida, exhs Angelee opp w / W F affirm, MA, LC, JSK affids, exhs Aronsky reply w/JBB affid, exha Dspo tram Luna (erep exh) Steno Minutes 1/5/12 variow stiper Numbered . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................... ........................ 1,2 3 4 5 6 7 - I - - - - - - - - - - - - - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ c _ _ _ - Gieche J. ; This i e an action for legal malpractice/negligence. On January 9 , 2009, plaintiff commenced this action alleging legal malpractice in defendant's representation of him in t h e Underlying C l a i m . On April 2 8 , 2011, plaintiff filed a note o f iasue and on Augurst 2 6 , 2011, Usfendant f i l e d thia motion f o r summary judgment. Defendant moveer for summary judgment, purauant to CPLR 3212, dismissing plaintiff's complaint. timely brought (CPLR § 32121 This motion is v . Citv of New Yo& , 2 N.Y.3d 648 [2004]). For the reasons set forth below, the motion is denied. P8rtior' Allsgationn and Underlying Baakground Page 1 of 8 FILED NEW YORK COUNTY CLERK'S OFFlCE [* 3] Plaintiff alleges that, on December 7, 2007, he was aseraulted in the lobby of a building (the Building), located at 1745 Caton Avenue, Brooklyn, New York, in which he was a tenant and that he hired defendant to repremnt him in prosecuting hia claim (the Underlying C l a i m ) (complaint, 1'8 1, 4 ) . Plaintiff contenda that defendant never cornencad an action againat t h e Building's owner, defendant did not conduct an adegwte inveetigation of the circumatancts of the incident, and he warn induced by defendant to sattlc the Underlying Claim against the Bulldlng'er owner f o r $8500, although t i a wa0 inadequate hr compemation in light of the severity of h i s injurice which included having both his arms broken, a broken J a w and broken ribs (id., 77 10, 17-18). Defendant asscrta that plaintiff voluntarily agreed to t h e eettlemsnt of the Underlying claim, that the Underlying C l a i m had significant liability problem, warranting a low eettlement amount, eincs plaintiff stated t h a t t h e door lock leading into the lobby area of the Building WBB in working ordar on the day of the incident, that t h e alleged aseailanta were unknown and that there w e r e no prior a i r n i l a r incidents in the Building (defendant affidavit, g l 14, S - 6 ) . Defendant atatear that, on W e 2 0 , 2008, he advised plaintiff in a telephone conference of the potential dffficultias in prosecuting the Underlying Claim, t h a t he presented the offer from the Building owner's insurance carrier Paga2of 8 [* 4] without any recommendation and that plaintiff wanted to, and did, agree to accept the offer and aigned a release s e t t l i n g the Underlying Claim (fd., 10-141 Marks affidavit, 11 3-71, In this motion, defendant contende that plaintiff CM not establish that "the asaailante gained entry into the [Bluilaing through a negligently maintained entrance" and, consequently, plaintiff could not succeed in the Underlying Claim (Kaminsky affirmation, a 9). Defendant also claima that plaintiff is nmcond gucasingR h i s decision to raettle the Underlying Claim and that his signing of the releasle bara this action (Bruno affirmation, 17 3, 9). Finally, defendant aeaerta t h a t hie investigation of the circumatanccs of the incident was appropriate and that it WBB a reasonable judgment that cannot serve as the baaier for a legal malpractice claim. Summary Gudgmsnt A party seeking erummary judgment muet make a prima facie Case showing that it iB entitled to judgment aa a matter of l a w by proffering sluffieiant evidence to demonstrate the abeence of any material issue of fact (Alvarez v Prospect m a p . , 6 8 ~ 320, 3 2 4 [1986] 1 ~ 2 If the movant f a i l a to make thia lehowing, the motion must be denied (Iff.). Once the movant meets its burden, then the opposfng party muet produce avldentiary proof in admissible form sufficient to raise a triable ieraua of material fact (Zucksxman v C i t y of N e w York, 4 9 NY2d 5 5 7 , 5 6 2 [I9801 1 . Page 3 of 8 In 8 [* 5] deciding t h e motion, the court must d r a w all reamonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt ae to the exirJtencn of a material issue of fact (Daumua Displays v Mu~tuxzo,168 AD2d 2 0 4 , 205 mpt 199OJ, Iv dismiBsed 77 NY2d 939 [19911). P r d a m r Liability t Generally, a landowner rnuat act aa a xeasonably prudent pereon in maintaining its property in a reasonably eafe condition under all the c i r c w t a n c s s , including the likelihood of i n j u r y , t h e potential seriouaness of Injury and t h e burden of avoiding the risk (Peralta v Henriqudz, 100 NY2d 139, 1 4 4 [ 2 0 0 3 1 ) . Additionally, a party muat be aware of the alleged defective or dangerous condition, either through having created It, actual knowledge of the condition or constructive notice of it through the Befect'B viaibility for a sufficient amount of time prior to the accident to enable a defendant to diecover and remedy it (Qordon v American Museum of Natural Hisrtary, 67 NY2d 836, 837 E19861 1 . In a prtmisee security action, a landlord has "a 'common-law duty to take minimal prtcautiona to protect ttnanta from foreseeable harm,, including a t h i r d party's foremeable criminal conduct [and] ... an injured tenant may recover damages 'only on a showing that the lan8lord's negligent conduct wae a proximate cause of the i n j u r y ' " (Rnmaro v Twin Park8 Southeast Hou888, Page 4 of 8 [* 6] Snc., 70 A1338 484, 484 [lat Dept 20101, quoting Burg08 v Aqueduct Realty C o r p . , 92 NY2d 5 4 4 , 5 4 8 L19981) . Where the assailante are unidentified, plaintiff "may meet his proximate cause burden ' i f t h e evidence renUers it more likely or more reasonable t h a n not that the [aesailanta were intruders] who gained acceerer to t h e prcrniears through a negligently maintained entrance'" ( R m a r o , 70 AD3d at 4 6 4 , quoting Burgos, 92 NY2d at 5 5 1 ) . Legal Malpraatiar "In order to surotain a claim for legal malpractice, a plaintiff muat eertablish both that the defendant attorney failed to exercise the ordinary reaonabls rrkill and knowledge commonly possemed by a member of the legal profeemian which rasulte In actual damage0 to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action 'but for' the attorney's negligance" (AmEalas Corp. v Davis Polk & Wardwell, 8 NY3d 4 2 8 , 4 3 4 [ZOO71 [internal citation omitted] Estate of Nevelaon v Carro, Spanbock, Raster 282, & i see also Cuiffo, 259 AD28 283 [lat Dtpt 19991). An "error of judgment ... [or the] selection of one among several reasonable couriem of action dots not conetitute malpractice" (Roener v Palay, 65 NY2d 736, 738 (19851 ; Rocfripsz v L i p s i g , Shagey, Manus Dept 20111 ) 6 Moveman, P.C., 8 1 AD3d 551, 5 5 2 [lst . However, "aettlcment of an underlying claim dcwa not Pagc5of 8 [* 7] preclude a subeequcnt action f o r legal malpractice where the settlement w a ~ effectively compelled by the mistakee of counselm (Kutncr v Catterson, 56 AD3d 4 3 7 , 4 3 7 - 4 3 8 [2d Dept also Rudolf v Shame, Dnchs, S t a n i s c i , Corker [20071; Gkrnett Dept 20111 v Fox, H o r n & Z O O S ] ; see & Sauex, 8 NY3d 4 3 8 C a m e r i d , LLrp, 82 AD3d 4 3 5 [lst * Dieausrion Applying the above mentioned legal principlasa to this motion, defendant s motion f o r aummary judgment must be denied. Defendant statea that a euccetraful reault in the Underlying Claim could not be eatablirahed erince plaintiff stated that the door locks were functioning properly on the day of the incident and plaintiff did not know who attacked h i m (plaintiff EBT, at 17, 19). Plaintiff has, however, presented evidence of a c c e s d b i l i t y to the Buildlng through a side entrance and that three men with baseball bats were 8een leaving the Building around the time of the alleged assault on plaintiff (Sosa EBT, at 5 2 , 5 4 , 5 9 ; L u n a EBT, at 20-21). Since the c o u r t must view the evidence in the light most favorable to plaintiff on this motion (Branham v Loewa Orphaum Cinemus, Inc., 8 NY3d 931, 932 [ 2 0 0 7 1 ) , plaintiff hacr raised a factual iseue aa to the accessibility to the Building through the unlocked aide entrance ( B w g o s , 92 NY2d at 551). Plaintiff has also presented evidence of a factual issue a0 Paga6of 8 [* 8] to the adaquacy of defendant's investigation i n t o the circumstances of the Underlying C l a i m , since neither defendant nor his lnveetigator went to the Building or spoke with t h e Building's superintendent and, accordingly, they dtd not obtain Informatton about the a i d e entrance and its accessibility (defendant EBT, at 51-52). Defendant alao failed to seek information as to prior similar incidents in the area which would be relevant to foraaeeability (fa. at 5 8 ) . Since defendant s t a t e d that he advisled plaintiff BLB to the strengths and weaknesses of the Underlying Claim as part of his diacumion with plaintiff on June 20, 2 0 0 8 in connection w i t h plaintiff a acceptance of t h e $8500 mttlemant offer, the factual dispute regarding whether an appropriate investigation t10 wag mada defendant could present an accurate aaaasrsrntnt of the adequacy of the settlement, ia a material issue. The factual diaputaa noted above also prsaent a matter of credibility more properly resolved by a fact finder at trial (sea Aller v C i t y of New York, 72 AD38 5 6 3 , 564 [ l s t D e g t 20101). On t h i n motion f o r summary judgment, the court muet accept plaintiff s version of contented factual mattere and, therefore, ainca clefendant hae failed to show entitlement to judgmnt as matter of l a w , his motion muat be denled (Branham, 8 W3d at 332) . Pago7of 8 CL [* 9] Conclusion In accordance with the foregoing, defendant's motion f o r summary judgment disrnisaing plaintiff's complaint io denied. Since the note of iesue has been filed, plaintiff ehall aerve a copy of this dacisfon and order on the Office of Trial Support rao thia case may be scheduled for t r i a l . Any relief not: specifically addrsaaed iB hereby denied. This constitutes the decision and order of the court. Dated : New York, New York April 2, 2012 So Ordered: 2 Hon. Judith J. Page8of 8 ischs, JSC

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