Legal Malpractice

Ice and Snow Cases with Legal Malpractice

By (Andrew Lavoott Bluestone)

We're sure that the Appellate Division did not plan this, but shortly after the first snow of the season, and in the middle of a span of days each with temperatures less than 25 degrees, we read the following case with interest.  In Walker v Glotzer ;  2010 NY Slip Op 09126  ;  Decided on December 7, 2010 ;  Appellate Division, Second Department we see a slip on snow and ice case which as admittedly lost on the first go-around on a blown statute of limitations. 
 

"She retained the defendant attorneys to bring a personal injury suit on her behalf. After the statute of limitations had expired, the defendants contacted the plaintiff and informed her that they had failed to timely commence an action on her behalf because of a clerical error. The plaintiff thereafter commenced the instant action to recover damages for legal malpractice. "

Typically, we see the case then blown out on a lack of notice to the land owner, an inability to prove that the landowner made the situation worse rather than simple nonfeasence, or a "storm in progress" defense.  Here, however, there must have been more.  Regrettably the AD said little about the actual facts.

"Here, the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, since they failed to come forward with admissible evidence supporting their contention that their alleged malpractice did not cause the plaintiff damage because she would not have been able to establish the notice element of a premises liability action. A property owner is subject to liability for a defective condition on its premises if a plaintiff demonstrates that the owner either created the alleged defect or had actual or constructive notice of it (see Betz v Daniel Conti, Inc., 69 AD3d 545, 545; Roy v City of New York, 65 AD3d 1030, 1031; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837). Under the circumstances of this case, the defendants failed to establish, as a matter of law, that the plaintiff would not have been able to prove that the premises owner did not, by its own snow and ice removal efforts, create or exacerbate the allegedly dangerous condition which caused the plaintiff's injuries (see Sut v City Cinemas Corp., 71 AD3d 759; Gil v Manufacturers Hanover Trust Co., 39 AD3d 703; see also Robles v City of New York, 56 AD3d 647; Bruzzo v County of Nassau, 50 AD3d 720)

Full post as published by New York Attorney Malpractice Blog on December 20, 2010 (boomark / email).