DECISION/ORDER Upon the following e-filed documents, listed by NYSCEF as item numbers 14-38, the motions are decided as follows: In this legal malpractice action, in Motion Sequence # 1, the defendant, GREGORY WATTS, ESQ., moves for an order pursuant to CPLR §3212 granting him summary judgment dismissing plaintiff’s complaint. In Motion Sequence # 2, the plaintiff, CHRISTINA JOHNSON, cross-moves for summary judgment in her favor. Background: The plaintiff commenced this action against the defendant sounding in legal malpractice alleging that the defendant failed to preserve her claim for personal injuries against the New York City Housing Authority (“NYCHA”) by failing to serve it with a timely notice of claim. The plaintiff resides in an apartment located within a NYCHA facility and claims that when she was leaving her apartment to go to work on the June 14, 2012, the front door to the apartment slammed on her left hand and severed the tip of her middle finger. The plaintiff commenced an action against NYCHA claiming that it was negligent in failing to maintain the door in a reasonably safe condition After the defendant commenced the action on plaintiff’s behalf, NYCHA moved to dismiss the action due to plaintiff’s failure to timely file a notice of claim.1 The motion was granted. The defendant now seeks summary judgment dismissing this action claiming that the plaintiff cannot show that NYCHA’s negligence caused the accident. In support of the motion, the defendant relies primarily on the testimony that the plaintiff gave at a 50H hearing concerning the accident and various NYCHA work records. At the 50H hearing, the plaintiff testified that on October 6, 2008, and on March 29, 2010, she had phoned the NYCHA rent office or management office to complain about her apartment door slamming too hard. The work records of NYCHA that were submitted on the motion, however, do not document these calls or any other calls regarding complaints about the door slamming too hard. The work records also reveal that on July 11, 2011, a NYCHA employee checked plaintiff’s front door and found it to be in satisfactory condition. The plaintiff signed off on the work order without making any written comment in the work order about any problem that she was having with the door. On December 28, 2011, a NYCHA employee, Richard Mullings repaired a leak under plaintiff s kitchen sink and also checked the front door and found it to be in satisfactory condition. Again, the plaintiff signed off on the work order without making any comment about the door. On December 29, 2011, Mr. Mullings performed maintenance on the door to plaintiff’s apartment by changing the cylinder on the door. Mr. Mullings made no notation of any complaint by the plaintiff about the door. Again, the plaintiff signed off on the work order. On May 18, 2012, Mr. Mullings repaired and replaced the base kitchen cabinet inside of plaintiff’s apartment. Mr. Mullings made no notation in the work order of any complaint by the plaintiff about the door. Again, the plaintiff did not make any written comments in the work order about any problem that she was having with the door. Discussion: 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 are 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 [internal quotation marks omitted]). 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, defendant failed to make such a showing. The only argument advanced by the defendant in support of the motion is that she would not have prevailed in the underlying action. To be awarded summary judgment, it was incumbent upon the defendant to submit admissible evidence demonstrating this fact as a matter of law. Here, plaintiff’s 50H testimony did not demonstrate, as a matter of law, that the door to her apartment was reasonably safe on the day of the accident, or that NYCHA lacked actual or constructive knowledge of the alleged defective condition. Indeed, plaintiff’s testimony documents that she made complaints about the door to NYCHA prior to the occurrence raising triable issues of fact as to whether had actual and/or constructive notice that the door was defective. It will be up to a jury to decide whether her testimony concerning her prior complaints are credible given the fact that they were not documented. Indeed, plaintiff’s 50H testimony did not even demonstrate as a matter of law that NYCHA did not create the alleged dangerous condition. Further, since the defendant did not submit an affidavit from a person with personal knowledge that the work records he relies on constituted NYCHA’s business records, the records were inadmissible and may not be considered. Even if they considered, they do not establish, as a matter of law, that NYCHA’s freedom from liability. In sum, the defendant did not establish, as a matter of law, that plaintiff’s front door was in a reasonably safe condition at the time of the accident, nor did they establish, as a matter of law, that NYCHA lacked actual or constructive notice of the alleged defective condition. Defendant’s motion for summary judgment must therefore be denied regardless of the sufficiency of the paper submitted by plaintiff in opposition. Turning to the cross-motion, to prevail in an action to recover damages for legal malpractice, not only must a plaintiff establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, the plaintiff must also establish that the attorney’s breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages but for the attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Davis v. Klein, 88 N.Y.2d 1008, 1009–1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268; Lamanna v. Pearson & Shapiro, 43 A.D.3d 1111, 843 N.Y.S.2d 143; Cohen v. Wallace & Minchenberg, 39 A.D.3d 691, 835 N.Y.S.2d 285). Here, there are triable issues of fact as to whether the plaintiff would have prevailed in the underlying action but for the defendant’s negligence. The cross-motion must therefore be denied. Accordingly, it is hereby ORDERED, that defendant’s motion for summary judgment dismissing the complaint is in all respects DENIED; and it is further ORDERED that plaintiff’s cross motion for summary judgment is also DENIED. This constitutes the decision in order of the court. Dated: August 14, 2023
