Lever v. Roesch
| Decision Date | 19 December 2012 |
| Parties | Mary Ellen LEVER, appellant, v. John Thomas ROESCH, etc., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
101 A.D.3d 954
957 N.Y.S.2d 354
2012 N.Y. Slip Op. 08699
Mary Ellen LEVER, appellant,
v.
John Thomas ROESCH, etc., et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 19, 2012.
[957 N.Y.S.2d 355]
Kaston Aberle & Levine, Mineola, N.Y. (Richard M. Aberle of counsel), for appellant.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Brian W. Keatts and John Cookson of counsel), for respondents.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.
[101 A.D.3d 954]In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty III, J.), entered November 12, 2008, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff allegedly sustained personal injuries when she tripped and fell over a hole in the parking lot of a shopping center. She retained the defendants to commence a personal [101 A.D.3d 955]injury action on her behalf against Breslin Realty Development Corp. (hereinafter Breslin), the owner of the property where she allegedly fell. Thereafter, the Supreme Court granted Breslin's motion for summary judgment and dismissed the underlying action. Specifically, the Supreme Court found that, in opposition to Breslin's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether Breslin either created or had actual or constructive notice of the alleged defect. The Supreme Court denied the plaintiff's motion for leave to renew and reargue her opposition to Breslin's motion.
The plaintiff subsequently commenced the instant action to recover damages for legal malpractice, alleging, inter alia, that
the defendants failed to timely locate potential notice witnesses and to properly oppose Breslin's motion for summary judgment, which resulted in the dismissal of the underlying action. The defendants moved for summary judgment dismissing the complaint in the instant action, and the Supreme Court granted their motion.
“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession...
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