| Gamer v Ross |
| 2008 NY Slip Op 02107 [49 AD3d 598] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Ilya Gamer et al., Respondents-Appellants, v Alan Ross etal., Appellants-Respondents. |
—[*1] Worby Groner Edelman LLP, White Plains, N.Y. (Richard S. Vecchio of counsel), forrespondents-appellants.
In an action to recover damages for legal malpractice, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedMay 3, 2007, as denied that branch of their motion which was for summary judgment dismissingthe complaint, and the plaintiffs cross-appeal from so much of the same order as granted thedefendants' separate motion for leave to amend the answer to include the affirmative defenses ofres judicata and collateral estoppel.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and thedefendants' separate motion for leave to amend the answer is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
While in-line skating, the infant plaintiff Ilya Gamer allegedly was injured when he trippedand fell over wires and debris located on a public sidewalk adjacent to a construction site. Theplaintiffs retained the defendants to commence a negligence action against the owner of theconstruction site. Subsequently, the defendants also commenced a separate negligence action, onbehalf of the plaintiffs, against a contractor which had performed construction work on the site.[*2]
The landowner moved for summary judgment dismissingthe complaint in the first underlying action, and its motion was granted. Thereafter, the contractormoved to dismiss the complaint in the second underlying action, and that motion was alsogranted. In granting the contractor's motion to dismiss, the Supreme Court found, in relevant part,that the second underlying action was barred by the doctrine of collateral estoppel, based uponthe plaintiffs' failure to raise a triable issue of fact in opposition to the landowner's summaryjudgment motion in the first underlying action.
The plaintiffs subsequently commenced the instant action against the defendants to recoverdamages for legal malpractice, alleging that the defendants were negligent in their handling of thetwo underlying actions on behalf of the plaintiffs, inter alia, by failing to conduct properdiscovery that would have enabled them successfully to oppose the landowner's motion forsummary judgment in the first underlying action and the contractor's motion to dismiss in thesecond underlying action. The defendants moved, inter alia, for summary judgment dismissingthe complaint, and separately moved for leave to amend the answer to assert affirmative defensesbased on res judicata and collateral estoppel. The Supreme Court denied that branch of themotion which was for summary judgment, and granted the separate motion for leave to amend.
In seeking summary judgment, the defendants asserted that the plaintiffs could not havesucceeded in the underlying actions because the wires and construction debris over which theinfant plaintiff allegedly tripped were open and obvious conditions that were not inherentlydangerous. On the facts presented, however, the defendants failed to establish their prima facieentitlement to judgment as a matter of law on that ground (see Cupo v Karfunkel, 1 AD3d 48 [2003]).
The defendants further contend that the plaintiffs could not have succeeded in the underlyingactions because they failed to adduce any evidence showing that the landowner of theconstruction site or its contractor caused or created the alleged dangerous condition. At theoutset, we note that this argument fundamentally misconstrued the central theory of the plaintiffs'case, viz., that the defendants were negligent in failing to conduct proper discovery that wouldhave uncovered facts sufficient to prevent the dismissal of the underlying actions. As the movingparties, the defendants bore the initial burden of establishing that the missing discovery wouldnot have prevented the dismissal of the underlying actions. "This burden cannot be satisfiedmerely by pointing out gaps in the plaintiff[s]' case" (DeFalco v BJ's Wholesale Club, Inc., 38 AD3d 824, 825 [2007]).
Moreover, a landowner may be held liable for injuries sustained by a third party due to thedefective condition of a sidewalk adjoining its property where it retains an independentcontractor to perform work for its benefit, the contractor creates a special danger upon thesidewalk in the course of its work that is inherent in the work and anticipated by the landowner,and the landowner has notice of the condition (see Emmons v City of New York, 283AD2d 244, 245 [2001]; cf. Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 155[1943]). Since it is well settled that, under those circumstances, "such owner will be liable forinjuries resulting from its nonperformance, even though the work is done by [a] contractor" (2ANY Jur 2d, Agency § 413), we cannot subscribe, on the facts presented, to the defendants'view that no amount of additional discovery could have prevented the dismissal of the underlyingactions against the landowner and contractor.
Equally unavailing is the defendants' claim that the instant action is barred by principles ofres judicata and collateral estoppel. Contrary to the defendants' contention, the pretrial dismissalof the underlying actions did not constitute conclusive proof that those actions were withoutmerit; it showed only that the plaintiffs were unable to raise triable issues of fact regarding thepotential [*3]liability of the landowner and its contractor. Theplaintiffs are not precluded by principles of res judicata or collateral estoppel from alleging, inthe instant action, that their inability to raise triable issues of fact in the underlying actions wascaused by the defendants' failure to conduct proper discovery.
In sum, the Supreme Court properly denied that branch of the defendants' motion which wasfor summary judgment dismissing the complaint, as the defendants failed to establish their primafacie entitlement to judgment as a matter of law (see Ayotte v Gervasio, 81 NY2d 1062[1993]).
The Supreme Court erred, however, in granting the defendants' separate motion for leave toamend the answer to interpose affirmative defenses based on res judicata and collateral estoppel.As previously explained, the plaintiffs in this case are not precluded from alleging that thedefendants' negligence in failing to conduct thorough discovery resulted in the dismissal of theunderlying actions. Leave to amend should not be granted where, as here, the proposedaffirmative defenses are palpably without merit (see Pellegrino v New York City Tr.Auth., 177 AD2d 554, 558 [1991]). Fisher, J.P., Miller, McCarthy and Chambers, JJ.,concur.