Opinion
No. 22406/12.
10-07-2015
Rocky FERRIGNO, Jr., Plaintiff(s), v. JAGHAB, JAGHAB & JAGHAB, P.C., Elias A. Jabhab, Sr., Elias Jaghab, Jr And Roy Jaghab, Defendant(s).
Paul J. Edelstein, Esq., Edelsteins, Faegenburg & Brown, New York, NY, attorney for plaintiff. Matthew K. Flanagan, Esq., Jericho, New York, attorney for defendants.
Paul J. Edelstein, Esq., Edelsteins, Faegenburg & Brown, New York, NY, attorney for plaintiff.
Matthew K. Flanagan, Esq., Jericho, New York, attorney for defendants.
FRANCOIS A. RIVERA, J.
By notice of motion filed on November 6, 2014, under motion sequence number two, plaintiff Rocky Ferrigno Jr. (hereafter plaintiff or Ferrigno) moves for an order granting (1) summary judgment on liability for plaintiff's claims against Jaghab, Jaghab & Jaghab, P.C., Elias A. Jaghab, Sr., Elias Jaghab, Jr., and Roy Jaghab (hereinafter jointly the defendants) for legal malpractice pursuant to CPLR 3212.
Plaintiff's "Affirmation in Support" also requests an extension of the time to file a note of issue.
By notice of cross motion filed on January 26, 2015, defendants move for an order granting: (1) summary judgment dismissing plaintiff's complaint pursuant to CPLR 3212 ; or in the alternative (2) an order compelling plaintiff to produce employment records and directing plaintiff to appear for the completion of his deposition pursuant to CPLR § 3124. A note of issue has not been filed.
Defendant's cross motion serves as opposition to plaintiff's motion.
BACKGROUND
On November 20, 2012, plaintiff commenced the instant action for damages for legal malpractice by filing a summons and complaint with the Kings County Clerk's Office. On February 14, 2014 an amended complaint was filed. On March 21, 2014, defendants joined issue by their joint answer.
The complaint sets forth forty-five allegations of fact in support of three causes of action. The first and second causes of action sound in legal malpractice. The third cause of action is for breach of contract. The summons and complaint allege that on August 10, 2009, plaintiff suffered injuries when he fell from an A-frame ladder after sustaining an electrical shock. At the time of the incident plaintiff was performing repairs to a light fixture at Medgar Evers College Prep School (hereafter MECPS), located at 1186 Carroll St., Brooklyn, New York (hereafter "the premises"). The premises is owned by the Dormitory Authority of the State of New York (hereafter DASNY). Prior to October 21, 2009, plaintiff retained Jaghab, P.C. to pursue an action to recover damages for those personal injuries.
The crux of plaintiff's claim is that the defendants failed to include DASNY in the notice of claim as a defendant and therefore failed to bring a cause of action against a liable party. Plaintiff alleges that, had the defendants brought an action against DASNY, he would have prevailed under an action pursuant to Labor Law § 200, 240(1), and 241(6).
LAW AND APPLICATION
Summary Judgment
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v. Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012]citing Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010] ). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 923 [1993] ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 at 324 [1986] ).
A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v. Associated for Manufacturers, Inc., 46 N.Y.2d 1065 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).
"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dept 2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2nd Dept 1990] ).
Legal Malpractice
In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Alizio v. Feldman, 82 AD3d 804 [2nd Dept 2011] ; see, Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] ). The damages recoverable in a legal malpractice action are limited to pecuniary loss (see Dombrowski v.. Bulson, 19 NY3d 347 [2012] ). "Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Healy v. Finz & Finz, ––– AD3d –––– [2nd Dept 2011]; citing, Northrop v. Thorsen, 46 AD3d 780, 782, [2nd Dept 2007] ).
In order 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 lawyer's negligence" (Id. ). Indeed, the failure to show proximate cause "mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent" (Wo Yee Hing Realty, Corp. v. Stern, 949 N.Y.S.2d 50 [1st Dept 2012] ).
In contrast, for a defendant to succeed on a motion for summary judgment he must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements (Gershkovich v. Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012] ). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (Alaimo v. Mongelli, 93 AD3d 742 [2nd Dept 2012] ).
Labor Law § 240(1)Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 [1991] ). To recover, the plaintiff must have been engaged in a covered activity "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240(1) ; see Panek v. County of Albany, 99 N.Y.2d 452, 457 [2003] ) and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009] ). To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries (Corchado v. 5030 Broadway Properties, LLC, 103 AD3d 768 [2nd Dept 2013] ).
"Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)" (Id. ). To hold a party liable, as an agent of general contractor, for violations of the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, demolition, and excavation work, there must be a showing that it had the authority to supervise and control the work; the determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right" (Bakhtadze v. Riddle, 56 AD3d 589 [2nd Dept 2008] ).
Plaintiff's Summary Judgment Motion
Plaintiff relies solely on the fact that defendants failed to bring a claim against DASNY under Labor Law § 240(1) in support of the allegation that defendants breached their duty to him. The following factors are not controverted. Defendants did not include DASNY in the notice of claim. Defendants failed to bring a claim against DASNY on plaintiff's behalf. DASNY owned the premises at the time of plaintiff's accident. Plaintiff is precluded from bringing an action against DASNY due to the failure to include DASNY in the notice of claim.
Plaintiff must establish that DASNY was a liable party and that he would have prevailed on the underlying claim against DASNY under Labor Law § 240(1) to prevail on the motion.
In support of the motion the plaintiff submitted his deposition. Plaintiff testified that he was engaged in repairing a lighting fixture when he received an electric shock and fell from an A-frame ladder. This establishes, prima facie, that plaintiff was within the protective ambit of Labor Law § 240(1) at the time of the accident (see Eisenstein v. Board of Mgrs. Of Oaks at La Tourette Condominium Sections I–IV, 43 AD3d 987, 842 N.Y.S.2d 72 ). As mentioned above, Labor Law § 240(1) creates a nondelegable duty and absolute liability upon owners for failure to provide proper safety devices for workers subject to elevation-related risks (see Labor Law § 240[1] ). Accordingly, plaintiff meets his prima facie burden on legal malpractice by establishing that the defendants failed to sue DASNY when they were the owners of the premises where the accident occurred and that plaintiff's activity was work contemplated within the protective ambit of Labor Law § 240(1).
The burden now shifts to the defendant to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v. Pleasantville Union Free School Dist., 28 AD3d 419, 811 N.Y.S.2d 573 [2nd Dept 2006] ). In opposition to plaintiff's motion for summary judgment, defendants raise a triable issue of fact regarding whether plaintiff was engaged in an activity protected by Labor Law § 240(1). Defendants submit the notice of claim to the City of New York. The notice of claim is signed and sworn to by the plaintiff as well as notarized. In pertinent part plaintiff states therein that he was "changing an overhead ballast" at the time of the accident. "[T]he task of replacing a ballast in a fluorescent light fixture falls within the category of routine maintenance" (Deoki v. Abner Props. Co., 48 AD3d 510, 510 ). Work that "involve[s] replacing components that require replacement in the course of normal wear and tear ... constitute[s] routine maintenance and not ‘repairing’ or any of the other enumerated activities" (Esposito v. New York City Indus. Development Agency, 1 NY3d 526 ) and, therefore, is not protected activity under Labor Law § 240(1).
As the motion papers contain different versions of the accident a triable issue of fact exists as to whether the plaintiff was engaged in work covered by Labor Law § 240(1). Accordingly, plaintiff's motion for summary judgment must be denied on these grounds.
Defendants' Summary Judgment Motion
In order for a defendant to succeed on a motion for summary judgment he must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements (Gershkovich v. Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012] ). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (Alaimo v. Mongelli, 93 AD3d 742 [2nd Dept 2012] ).
As discussed above, there is a triable issue regarding whether at the time of the accident plaintiff was engaged in activity covered by Labor Law § 240(1). Accordingly, the Court need not address that portion of the motion.
It should be noted that the defendants could have also met their burden by establishing that plaintiff did not sustain any physical injury. If the plaintiff had not sustained an injury because of the fall then, regardless of the liability, the plaintiff still would have been unsuccessful in the underlying action. However, the defendants did not submit any medical evidence regarding plaintiff's injuries and, therefore, do not meet their prima facie burden to establish a lack of ascertainable damages.
Accordingly, defendants failed to meet their burden for summary judgment and the motion must be denied.
Defendants' Motion to Compel Discovery
Defendant seeks certain responses from plaintiff relating to a preliminary conference order dated April 26, 2013. As per that order, the parties were to produce discovery items including, authorizations for plaintiff's employment records, including IRS records and W–2's; a supplemental response to defendants' combined demands; a formal response to the preliminary conference order; completion of plaintiff's deposition; and the physical examination of the plaintiff by an independent medical examiner (IME). Plaintiff does not oppose this branch of the motion. The aforementioned discovery items have not been received by defendants' counsel to date despite good-faith efforts to resolve the issue.
The motion papers are silent as to whether a note of issue has been filed. The preliminary conference order directs the filing of the note of issue by February 21, 2014. The parties are directed to appear in Part 52 at 10:00 a.m. on October 27, 2015 for further argument on this portion of the motion.
CONCLUSION
Plaintiff's motion for summary judgment on liability for plaintiff's claims against the defendants pursuant to CPLR 3212 is denied.
The defendants' motion for summary judgment dismissing plaintiff's complaint pursuant to CPLR 3212 is denied.
The defendants' motion for an order compelling plaintiff to produce employment records and directing plaintiff to appear for the completion of his deposition pursuant to CPLR 3124 is stayed pending further argument on October 27, 2015.
The foregoing constitutes the decision and order of this Court.