Opinion
No. 39.
Argued February 11, 2010.
Decided March 25, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered October 14, 2008. The Appellate Division reversed, on the law, so much of an order of the Supreme Court, Kings County (Gloria M. Dabiri, J.), which had denied a motion by defendant for summary judgment dismissing the complaint, and granted defendant's motion for summary judgment dismissing the complaint.
Following plaintiffs slip and fall on ice on a public sidewalk in front of a building owned by the New York City Housing Authority, she retained defendant law firm. After the claim against the Authority was dismissed for failure to serve a timely notice of claim, plaintiff commenced the present action for legal malpractice. Defendant moved to dismiss, asserting that plaintiff could not have prevailed in the underlying action. Supreme Court concluded that plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the Authority could have been found liable to plaintiff on a theory of constructive notice. The Appellate Division concluded that plaintiff could not prevail on that theory since she could not point out the exact location of her fall other than that it was in the middle of a block in front of the building owned by the Authority, and she offered only speculation that the ice on which she slipped had to have been a product of prior snowfalls which were not properly cleared.
Teodorescu v Resnick Binder, P.C., 55 AD3d 721, reversed.
Lawrence B. Lame, Jamaica, and Jonah Grossman for appellant.
Kelleher Maragno, LLP, Albany ( John J. Kelleher of counsel), for respondent.
Before: Concur: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
Order reversed, with costs, and defendant's motion for summary judgment denied. We hold, contrary to the Appellate Division, that plaintiff raised issues of fact regarding whether she could have prevailed on a theory of constructive notice.