Yu Chen v Nitkewicz

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Yu Chen v Nitkewicz 2020 NY Slip Op 30714(U) January 13, 2020 Supreme Court, Queens County Docket Number: 711702/15 Judge: Robert I. Caloras Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 01/17/2020 09:51 AM NYSCEF DOC. NO. 80 INDEX NO. 711702/2015 RECEIVED NYSCEF: 01/17/2020 FILED JAN 1 7 2020 Short Form Order NEW YORK SU PREME COURT - QUEENS PRESENT: HON. ROBERTl.CALORAS Justice couNn CLERK QUE£NS COUNTY r'nttN~~:...;,:...::.:....:.:.;~---' PART 36 ------------------------------------------------------------------)( Index No. 711702/ 15 Motion Date: 1117/ 19 Motion Cal. No. 4 Seq. No. 4 YU CHEN, Plaintiff, -againstA VELJNO NITKEWICZ, ANDREW P. NITKEWICZ, LARRY STODDARD III and AVELINO NITKEWICZ, LLP, Defendants. ------------------------------------------------------------------)( The fo llowing papers numbered E56-E79 read on thi s motion by defendants, Andrew P. Nitkewicz and Avelino Nitkewicz, LLP, for an order di smi ssing the Complaint pursuant to CPLR 32 12. PAPERS NUM BERED Notice of Motion-Affinnation-Exhibits-Memo of Law .... ... E56-E72 Affi nnation in Opposition-Exhibits .... .............. ... .... .. .......... . E73-E78 Memo of Law in Reply........... .................... ...... ...... .............. . E79 Upon the foregoi ng papers, it is ordered that defendants', Andrew P. Nitkewicz and Avel ino Nitkewicz, LLP, (hereinafter "defendants") motion is granted as follows: This is a legal malpractice action 1 that stems from an underlying action entitled Yun Chen v New Jersey Transit Corporation, Docket No.: MID-L-9013-11 (the, "Underlying Action"), which was fi led in the Superior Court of New Jersey. In the underlying action, the plaintiff alleged that she was injured on December 30, 2009, when a metal object struck her right hand while she was standing on a train platform at the New Jersey Transit Edison Station. It is undisputed that, in a written order, fil ed on August 9, 2013, Judge Phillip Lewis Paley of Superior Court of New Jersey granted New Jersey Transit Corporation's (hereinafter "NJTC" or "NJT") motion for summary j udgment and dismissed the underlying action. It is also undisputed that the plaintiff appealed this order, and that on June 20, 20 14, the Superior Court of New Jersey, Appellate Division issued a decision affirming the Superior Court' s order granting summary judgment to NJTC. The Appellate Di vis ion stated in its decision, in pertinent part, the following: 1 In a decision, dated August I0, 20 16, Justice Diccia T. Pineda Kirwan dismissed the Complaint as to defendant Larry Stoddard Ill. -1- 1 of 4 [*FILED: 2] QUEENS COUNTY CLERK 01/17/2020 09:51 AM NYSCEF DOC. NO. 80 INDEX NO. 711702/2015 RECEIVED NYSCEF: 01/17/2020 .. Fatal to plaintiffs proofs is that he does not know the source of the object that struck her hand, or how it struck her hand. The object could have come from a passing train, which is consistent with the statements of the witnesses who were walking behind her, or, as plaintiff theorizes, th e object could have been "kicked up" from th e tracks. But absent ev idence that the object came from a NJT train, plaintiff cannot establish that NJT's property was in a dangerous condition or that NJT had noti ce of such dangerous condition. And even if the object had been "kicked up" from the tracks, plaintiff offered no evidence that an incident had occurred where an object had been "kicked up" from the tracks by a passing train, or that a si milar object had been on or near the tracks long enough fo r NJT to have di scovered it. Stated di fferentl y, plainti ff presented no competent evidence from which a reasonable j ury could have inferred that NJT had noti ce of a dangerous conditi on. Defendants now move fo r summary j udgment, dismi ssing the Compl aint. Defendants have submitted, among other things, the fo llowi ng: Summons with Noti ce and Verified Complaint, along with Exhibit " l" which contained the decision issued on June 20, 201 4 by the Superior Court of New Jersey, Appellate Division; Verifi ed Answer; plaintiffs deposition transcript; affidavit from defendant Andrew P. Nitkewicz, Esq.; Retainer Agreement; plaintiffs deposition tran cri pt in the underlying acti on; plainti ffs affidav it of merit in the underlying action; Judge Paley's order, dated August 9, 201 3; correspondence, dated September 3, 201 3; and a memorandum of law. At her deposition, and in her affidav it of merit in the underlyi ng acti on, the plaintiff stated that she did not see where the metal object came from. At her deposition in the this acti on, the plaintiff also testified that he did not know the identity of who was responsible fo r, or placed the metal object on the tracks. Plaintiff further testified that, since the time the defendants ceased representing her, she has not taken any steps to attempt to identi fy where the metal object came from, and she has not retained any investigators to attempt to learn the identity of the metal object. Defendants argue that the allegations in the Comp laint regarding the ability of an investigator to identi fy the owner of the metal object, along with the plain tiffs fa ilure to identi fy any ind ividual or entity from whom the plaintiff could have recovered from in the underlying acti on, are conclusory and speculative. -2- 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 01/17/2020 09:51 AM NYSCEF DOC. NO. 80 INDEX NO. 711702/2015 RECEIVED NYSCEF: 01/17/2020 Defendants also argue that the Complaint should be dismissed because, even if an investigator could have identified the metal object which struck the plaintiff, she cannot establish that she would have succeeded on the merits of an action for negligence against that indi vidual or entity. Defendants assert that since the plaintiff did not see the metal object before it struck her hand, and does not know the mechanics of how the metal object propelled through the ai r to hit her, the plaintiff cannot establish that an alleged tortfeasor had actual or constructi ve notice of the al leged dangerous condition. In opposition, the plaintiff argues that in the underlying acti on, the defendants failed to name Amtrak as a defendant necessary party. Plaintiff has submitted the New Jersey police report for the subject incident, which includes the following statement: W I and W 2 ... stated: They were walking behind victim. They noticed a possible Amtrak Train traveling South in the center tack. As the train passed they noticed a metal object fa ll off the train and kicked or kicked up by the train, fly in the air and strike victim. The plaintiff argues that the defendants ' fai lure to investigate and name Amtrak as a defendant in the underlyi ng action was gross negligence. The plaintiff also asserts that judicial notice could be taken that New Jersey train system was controlled and run by the NJT and Amtrak at the time of the acc ident. both NJT and Amtrak. The plaintiff argues that the defendants failure to add Amtrak as a defendant caused the following: Amtrak easily got out of the hook; shifted the burden of proving negligence from the defendant to the plaintiff in the underlying action; and the underlying action to be dismissed. Plaintiff also argues that the defendants claims that the Complaint is speculative and based upon conjecture contradict the verified statements they made in the underlying action. The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [ 1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557 [ 1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [ 1985]). To establish a cause of action to recover damages for legal malpractice, a plaintiff must establish the elements of proximate cause and damages, i.e. "a plaintiff must show that but for the attorney's negligence, he or she would have prevailed on the underlying claim" (Verdi v Jacoby & Meyers, LLP, 154 AD3d 90 I, 902 [2d Dept. 20 17]). Only after a plaintiff -3- 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 01/17/2020 09:51 AM NYSCEF DOC. NO. 80 INDEX NO. 711702/2015 RECEIVED NYSCEF: 01/17/2020 establishes that he or she would have recovered a favorable judgment in the underlying action, can he or she proceed with proof that the attorney was negligent in handling that action, and that the attorney's negligence was the proximate cause of the plaintiffs loss (Lindenman v Kreitzer, 7 AD3d 30, 34 [1 st Dept. 2004]). Here, the Court finds that the defendants established their prima facie entitlement to summary judgment. In New Jersey, a common law cause of action for negligence has four elements: ( I) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages (Brunson v Affini Fed. Cred. Union, 199 NJ 38 1, 400, 972 A2d 1112 [2009]). Plai ntiff must establish that the alleged tortfeasor had actual or constructive knowledge of the dangerous condition that caused her accident in order for Pl ai ntiff to have recovered for her personal injuries (see N isivoccia v G lass Gardens, Inc. , 175 NJ 559, 563 , 8 18 A2d 314, 3 14 [NJ 2003], citing Brown v Racauet Club ofBricktown, 95 NJ 280, 291 , 471A2d25 [1984]). Here, even ifan investigator could have determined the owner of the piece of metal that struck the pl ainti ff, she has repeatedly stated that she does not know how the metal object propelled through the air and struck her hand. Consequentl y, the plaintiff cannot establish th at a potential tortfeasor had actual or constructive notice of the alleged dangerous condition, which is a required element for a cause of acti on for negli gence in the State of New Jersey. The Court also finds that the plaintiff has fa iled to raise a triable issue of fact. The plaintiffs claim that the outcome of the underlying action would have been different if the defendants had named Amtrak and/or other unspec ified tortfeasors as parties is based upon mere speculati on. The plaintiff is still unable to identify where the metal object came fro m, what caused it to propel through the air and what caused it to hit her hand. Moreover, there is nothing to indicate that any potential tortfeasor had any of this information, or actual and/or constructive knowledge of the metal object which struck her hand. In addition, the witnesses ' statement in the uncertifi ed police report the plaintiff submitted are hearsay and not admissible evidence (Coleman v Macias, 6 I A D3d 569 [ 1si Dept. 2009]). Moreover, the plaintiff fai led to demonstrate how Amtrak may be li able for the dangerous condition which caused her inj uries. Contrary to her implicit argument, an Amtrak train's mere presence in the train station at the ti me ofplaintiff s inj ury is insufficient to establish liab il ity on the part of Amtrak. Furthermore, the Court finds the plaintiffs remaining contentions to be w ithout merit. Accordingly, the defendants' motion is granted, and th ompl · !dismissed. Dated: January 13, 2020 ROBERT I. CALORAS, J.S.C. FILED JAN 1 7 2020 -4- COUNTY CLERK QUEENS COUNTY 4 of 4

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