Failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action.

In Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544 [2d Dept 2021], the court reinstated the client’s complaint for legal malpractice against its former attorneys, holding:

To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied (see Buczek v. Dell & Little, LLP, 127 A.D.3d 1121, 1123, 7 N.Y.S.3d 558; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604). Those elements require a showing that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Bells v. Foster, 83 A.D.3d 876, 877, 922 N.Y.S.2d 124; see also Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 845, 952 N.Y.S.2d 592). The causation element requires a showing that the injured party “ ‘would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence’ ” (Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124, quoting Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1018, 912 N.Y.S.2d 590). The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff’s proof (see Quantum Corporate Funding, Ltd. v. Ellis, 126 A.D.3d 866, 871, 6 N.Y.S.3d 255).

Here, the judgment must be reversed, as the Supreme Court should have denied Wilentz’s motion for summary judgment dismissing the complaint. Wilentz failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action (see Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124; see also Biberaj v. Acocella, 120 A.D.3d 1285, 1287, 993 N.Y.S.2d 64). Since Wilentz failed to make its prima facie showing, we do not need to consider the sufficiency of Aqua–Trol’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The Supreme Court, however, properly denied Aqua–Trol’s cross motion for summary judgment on the issue of liability. Aqua–Trol did not establish, prima facie, that Wilentz failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Schottland v. Brown Harris Stevens Brooklyn, LLC, 137 A.D.3d 995, 996–997, 27 N.Y.S.3d 259; Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124). Since Aqua–Trol failed to satisfy its prima facie burden, we need not consider the sufficiency of Wilentz’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice

Appeals court reverses dismissal of action in personal injury case. Proposal to install elevator gate was the smoking “gate”.

Scan of redacted proposal, with words in bold saying, about an elevator that lacked a gate on the inside of the elevator platform, "this is extremely dangerous, someone could get hurt." This image illustrates an article by Richard Klass discussing a personal injury case.

The company’s porter was operating a manually-controlled freight elevator in a large Manhattan industrial building owned by the defendants. The porter, who was employed by a tenant of the building, was in the process of bringing the elevator up to the eighth floor at the time of the accident. According to him, the heel of his left foot became caught between the fourth floor landing and the moving elevator. The elevator did not have a gate separating the interior side of the elevator cab from the elevator shaft. The porter allegedly sustained severe injuries to his left foot and ankle as a result of the accident, which, unfortunately, may later lead to the amputation of his foot.

The porter came to Richard A. Klass, Your Court Street Lawyer, to sue the building’s owners for his severe personal injuries. Mr. Klass brought in the preeminent personal injury firm, Stefano A. Filippazzo, P.C., to pursue and litigate the porter’s case.

Elevator in compliance – when installed over 80 years ago!

This industrial building was built pre-war. The freight elevator was installed a very long time ago yet remained in operation through at least the time of the porter’s accident in 2009. It was undisputed that the elevator was in compliance with all applicable rules, regulations, and codes at the time of its installation. The building owners moved for summary judgment dismissing the complaint against them on this basis.

Proposal: “This is extremely dangerous”

Two years before this terrible accident, the building’s owners received a proposal from their elevator service company to install a new manual gate with guide tracks and chains, which would allow for the smooth operation of the elevator with minimal risk of injury to its operator. The proposal stated: “Presently there are no gates on inside of elevator platform, building personnel are leaning over platform, this is extremely dangerous, someone could get hurt” (bold added for emphasis).

Appeals court reverses dismissal of action.

Shockingly, the trial court dismissed the porter’s lawsuit, relying on the building owners’ argument that, since the elevator was in code compliance when it was installed (despite that being a very long time ago), there could be no liability for there being no gate installed. Stefano A. Filippazzo could not give up on the case, believing that the judge got it 100% wrong! The porter appealed the dismissal, arguing that the owners’ failure to install a gate on the interior side of the freight elevator constituted a serious, defective condition.

In reversing the dismissal, the appellate court held that:

“[T]he plaintiff raised a triable issue of fact as to whether the defendants were negligent. The plaintiff submitted evidence demonstrating that prior to the accident, the defendants were on notice of the dangerous condition of the elevator when they were provided with proposals from their own elevator service company, which proposals stated that because there was no gate on the inside of the elevator platform, an extremely dangerous condition existed (see DeCarlo v Vacchio, 147 AD3d at 725).”

No proof of code violations does not doom negligence claim.

Recognizing that the elevator was in code compliance, the appellate court was unwilling to come to the same conclusion as the trial court that there could be no personal injury claim. Rather, the court held that a trial court consider the absence of code violations in the context of the overall situation. In Romero v Waterfront N.Y., 168 AD3d 1012 [2d Dept 2019], the court opined:

However, “the absence of a violation of a specific code or ordinance is not dispositive of a plaintiff’s allegations based on common-law negligence principles” (Alexis v Motel Oasis, 143 AD3d 926, 927 [2016]; see DeCarlo v Vacchio, 147 AD3d 724, 725 [2017]; Zebzda v Hudson St., LLC, 72 AD3d 679, 680-681 [2010]). Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances (see Zebzda v Hudson St., LLC, 72 AD3d at 680-681).

Based upon the appellate court’s reversal, the personal injury claim was remanded back to the trial court. When faced with both the porter’s substantial, lifetime injuries and the actual notice received from the elevator service company of the existence of a dangerous, defective condition, the building owners settled the personal injury lawsuit.

R. A. Klass
Your Court Street Lawyer

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