| Duffy-Duncan v Berns & Castro |
| 2007 NY Slip Op 09493 [45 AD3d 489] |
| November 29, 2007 |
| Appellate Division, First Department |
| Hamilton Duffy-Duncan, Respondent, v Berns & Castro etal., Appellants. |
—[*1] The Cochran Firm, Weitz, Kleinick & Weitz, LLP, New York City (Stewart G. Milch ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered November 22, 2006,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Summary judgment was properly denied in this action for legal malpractice, wheredefendants' admitted failure to timely serve a notice of claim on the New York City TransitAuthority (NYCTA) precluded plaintiff from prosecuting his personal injury action arising out ofhis alleged slip and fall on a patch of ice located on an elevated subway platform. Defendantsfailed to make a prima facie showing that despite its failure to file a timely notice of claim onNYCTA, plaintiff could not have prevailed in the underlying action (see Boarman v Siegel, Kelleher &Kahn, 41 AD3d 1247 [2007]). The record evidence demonstrates that because of thelack of discovery conducted in the underlying action, it cannot be discerned whether NYCTA hadactual notice of the defective condition. Nor did defendants establish that NYCTA lackedconstructive notice of the condition on the subject platform. The certified climatological reportssubmitted by defendants, and unaccompanied by an expert opinion, were insufficient todemonstrate a lack of constructive notice inasmuch as the reports, evidencing temperaturereadings hovering around the freezing mark in the hours leading up to plaintiff's fall, were takenin neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall inthe Bronx (see Ralat v New York City Hous. Auth., 265 AD2d 185, 186 [1999]).[*2]
We have considered defendants' remaining contentionsand find them unavailing. Concur—Lippman, P.J., Nardelli, Buckley, Gonzalez andSweeny, JJ.