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
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This opinion is uncorrected and not selected for official
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Index Nurnbw: 1 ~
DmaImIon and Order
Index No.: lOOOSl/ZOOS
Bon. J a t h
J e f f r e y A. z~~onsJcy,
[a] of the paperer
eonsidared in the -review of this (these) motion ( 8 ) :
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
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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
Defendant moveer for summary judgment, purauant
to CPLR 3212, dismissing plaintiff's complaint.
timely brought (CPLR
This motion is
v . Citv of New Yo&
For the reasons set forth below, the motion is denied.
P8rtior' Allsgationn and Underlying Baakground
Page 1 of 8
COUNTY CLERK'S OFFlCE
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, 4 ) .
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
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
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,
In this motion, defendant contende that plaintiff
establish that "the asaailante gained entry into the [Bluilaing
through a negligently maintained entrance"
plaintiff could not succeed in the Underlying Claim (Kaminsky
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
Finally, defendant aeaerta t h a t hie
investigation of the circumatanccs of the incident was
appropriate and that it
a reasonable judgment that cannot
serve as the baaier for a legal malpractice claim.
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  1
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
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 ,
mpt 199OJ, Iv dismiBsed 77 NY2d 939 [19911).
P r d a m r Liability
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
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
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
Snc., 70 A1338
[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 ) .
"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
Cuiffo, 259 AD28
283 [lat Dtpt 19991).
"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 )
Moveman, P.C., 8 1 AD3d 551,
5 5 2 [lst
However, "aettlcment of an underlying claim dcwa not
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
v Fox, H o r n
Z O O S ] ; see
8 NY3d 4 3 8
C a m e r i d , LLrp, 82 AD3d 4 3 5 [lst
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
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
Plaintiff has also presented evidence of a factual issue a0
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
at 5 8 ) .
Since defendant s t a t e d that he advisled plaintiff
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
mttlemant offer, the factual
dispute regarding whether an appropriate investigation
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 ,
[ l s t D e g t 20101).
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
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.
New York, New York
Hon. Judith J.