FKB successfully overturns trial court's denial of motion for summary judgment on appeal in the Appellate Division, Second Department. 5/29/2009

After the Queens County Supreme Court denied FKB's motion for summary judgment in a legal malpractice action, the Appellate Division, Second Department reversed the decision, granted FKB's motion for summary judgment, and dismissed plaintiff's Complaint in its entirety, with costs.

FKB's client, a personal injury attorney, failed to commence a personal injury lawsuit on behalf of the plaintiff prior to the expiration of the three-year statute of limitations. The plaintiff, a UPS driver, apparently sustained serious injuries when he allegedly tripped and fell on a defective staircase while making a delivery at a residential home. Although our client engaged in settlement discussions with the homeowner's insurance carrier prior to the expiration of the statute of limitations, the negotiation failed and our client subsequently realized that the statute of limitations had expired. Shortly thereafter, the plaintiff commenced this legal malpractice lawsuit.

During depositions, FKB obtained damning testimony from the plaintiff, as the plaintiff testified that he is "not sure" what caused his fall. Supported by the case law holding that a plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, we moved for summary judgment. While the lower court acknowledged that the plaintiff was unable to identify the cause of his fall, the motion was denied, as the court found that the plaintiff's affidavit in opposition, as well as photographs depicting the general area where he purportedly fell, raised "triable issues of fact."

FKB appealed the decision to the Appellate Division, Second Department. On appeal, we argued that the plaintiff's inability to identify his fall mandates dismissal of the Complaint as a matter of law, regardless of the existence of photographs that merely depict the general area in which the plaintiff fell. The Appellate Division agreed with our arguments, finding that we established that even if our client timely commenced an action on the plaintiff's behalf, the action would not have been successful because the plaintiff could not identify what had caused him to fall. The Appellate Division further held that the plaintiff failed to raise a triable issue of fact in opposition.

FKB's Joshua B. Sandberg prepared the winning appellate papers.

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