| Long v Cellino & Barnes, P.C. |
| 2009 NY Slip Op 09790 [68 AD3d 1706] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Keith Long, Appellant, v Cellino & Barnes, P.C., et al.,Respondents. |
—[*1] Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Gabrielle Mardany Hope of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredSeptember 16, 2008 in a legal malpractice action. The order, insofar as appealed from, denied themotion of plaintiff for partial summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs and the motion is granted.
Memorandum: Plaintiff commenced this legal malpractice action seeking, inter alia,damages resulting from the conceded negligence of defendants in representing him in theunderlying action by failing to commence the action against the proper parties in a timelymanner. Supreme Court erred in denying plaintiff's motion seeking partial summary judgment onthe first cause of action against defendants insofar as it is based upon the loss of a viable LaborLaw § 240 (1) claim in the underlying action. We note that, on a prior appeal, we affirmedan order granting, inter alia, those parts of the cross motion of defendants seeking summaryjudgment dismissing the second and third causes of action against them (Long v Cellino & Barnes, P.C., 59AD3d 1062 [2009]). We agree with plaintiff that he met his burden of establishing that hewould have prevailed on the Labor Law § 240 (1) claim in the underlying action but fordefendants' negligence (see generally McKenna v Forsyth & Forsyth, 280 AD2d 79, 81[2001], lv denied 96 NY2d 720 [2001]). In support of his motion, plaintiff establishedthat he was injured by a fall from an elevated work site and that the absence of appropriate safetydevices was a proximate cause of his injuries (see Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086 [2005]).Defendants failed to raise a triable issue of fact in opposition to the motion (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to defendants'contention, the nondelegable duty imposed upon the owner and general contractor under LaborLaw § 240 (1) " 'is not met merely by providing safety instructions or by making othersafety devices available, but by furnishing, placing and operating such devices so as to give [aworker] proper protection' " (Haystrand v County of Ontario, 207 AD2d 978 [1994];see Heath v Soloff Constr., 107 AD2d 507, 512 [1985]).
Finally, defendants contend that, despite their failure to cross appeal, we should exercise[*2]our power to grant their instant cross motion seekingsummary judgment dismissing the first cause of action against them (see generally MerrittHill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]). In view of ourdetermination with respect to plaintiff's appeal, we reject that contention.Present—Scudder, P.J., Smith, Peradotto, Green and Gorski, JJ.