| Sabalza v Salgado |
| 2011 NY Slip Op 04732 [85 AD3d 436] |
| June 7, 2011 |
| Appellate Division, First Department |
| Maria Sabalza, Respondent, v William H. Salgado,Defendant/Third-Party Plaintiff-Appellant. William Pager Esq. et al., Third-PartyDefendants-Respondents. |
—[*1] William Pager, Brooklyn, for Maria Sabalza, respondent. Steinberg & Cavaliere, LLP, White Plains (Steven A. Coploff of counsel), for William PagerEsq. and Law Offices of William Pager, respondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered June 30, 2010, whichdenied defendant/third-party plaintiff's motion for summary judgment dismissing the complaint,and granted third-party defendants' motion to dismiss the third-party complaint pursuant to CPLR3211 (a) (1) and (7), unanimously affirmed, with costs.
Plaintiff alleges that, while grocery shopping at a local supermarket in 1997, she slipped andfell on water and a grape at a soda display, near the produce section. She retained the services ofdefendant attorney, and he commenced an action for personal injuries in 1998. On May 26, 2003,the action was dismissed based upon the failure of defendant to appear at a complianceconference. On or about May 5, 2004, defendant filed a motion to restore the case to thecalendar, but that motion was denied, based upon defendant's failure to appear in support of themotion. On or about March 14, 2005, defendant filed a motion to renew his prior motion torestore plaintiff's action to the court calendar, and that motion was denied on the merits.
Plaintiff alleges that defendant misled her as to the status of her case, screened his calls toavoid speaking with her, and failed to appear for previously scheduled appointments. In Augustof 2005, plaintiff engaged the services of third-party defendants who, after executing a consent tochange attorney in the underlying action, commenced this action for malpractice.
A plaintiff's burden of proof in a legal malpractice action is a heavy one (Lindenman v Kreitzer, 7 AD3d 30[2004]). The plaintiff must first prove the hypothetical outcome of the underlying litigation and,then, the attorney's liability for malpractice in connection with that litigation (id. at 34; Nazario v Fortunato & Fortunato,PLLC, 32 AD3d 692 [2006]).[*2]
However, a defendant seeking dismissal of a malpracticecase against him has the movant's burden of making a prima facie showing of entitlement tosummary judgment (see Suppiah vKalish, 76 AD3d 829 [2010]). Where the motion is premised on an argument that theplaintiff could not succeed on her claim below, it is defendant's burden to demonstrate that theplaintiff would be unable to prove one of the essential elements of her claim (see Velie v Ellis Law, P.C., 48 AD3d674 [2008]).
A defendant seeking summary judgment in a slip and fall case has the initial burden ofmaking a prima facie showing that it neither created the hazardous condition, nor had actual orconstructive notice of its existence (seeCastillo v New York City Tr. Auth., 69 AD3d 487 [2010]). A defendant cannot satisfyits burden merely by pointing out gaps in the plaintiff's case, and instead must submit evidenceconcerning when the area was last cleaned and inspected prior to the accident (see Baptiste v 1626 Meat Corp., 45AD3d 259 [2007]; Porco vMarshalls Dept. Stores, 30 AD3d 284 [2006]; compare Smith v Costco Wholesale Corp., 50 AD3d 499 [2008]).
Defendant attorney failed to make a prima facie showing (see Suppiah, 76 AD3d at832; Velie, 48 AD3d at 675). He did not submit any evidence, documentary, testimonialor otherwise, concerning C-Town's maintenance procedures, whether or not there were anycomplaints concerning the conditions, or when C-Town last inspected the area. Since defendantfailed to meet his initial burden of establishing a lack of constructive notice as a matter of law,the burden never shifted to plaintiff to establish how long the condition had been in existence (see Joachim v 1824 Church Ave., Inc.,12 AD3d 409 [2004]).
The motion court was correct in denying defendant's motion to dismiss plaintiff's claim of aviolation of Judiciary Law § 487. A cause of action for violation of the Judiciary Lawstatute related to attorney misconduct is not duplicative of causes of action alleging legalmalpractice, since the statutory claim requires an intent to deceive, whereas a legal malpracticeclaim is based on negligent conduct (Burke, Albright, Harter & Rzepka, LLP v Sills, 83 AD3d 1413[2011]; Moormann v Perini &Hoerger, 65 AD3d 1106 [2009]).
The third-party action for contribution or indemnification was also properly dismissed as notviable, since third-party defendants did not share in defendant's responsibility for plaintiff'salleged loss, not having represented her as defendant's successor until after the case had beendismissed and two motions to restore had been denied (see Rivas v Raymond Schwartzberg & Assoc., PLLC, 52 AD3d401 [2008]; Wilson v Quaranta,18 AD3d 324 [2005]). Concur—Saxe, J.P., DeGrasse, Freedman, Abdus-Salaam andManzanet-Daniels, JJ.