By notice of motion filed on August 25, 2010, plaintiff moves under motion sequence number seven, for an order pursuant to CPLR 2221(e) granting plaintiff renewal of a cross-motion for summary judgment made under motion sequence number six and, upon renewal, granting plaintiff summary judgment on the issue of liability against the defendants. Defendants oppose plaintiff's instant motion to renew the cross motion.

By notice of motion filed on September 9, 2009, defendants moved under motion sequence number five, for an order granting summary judgment in their favor on liability and dismissing the complaint on the grounds that plaintiff had failed to prove a claim of malpractice against the defendants. By order dated October 30, 2009 this court denied the defendants' motion.

By notice of cross-motion filed on September 18, 2009, plaintiff moved under motion sequence number six, for an order granting partial summary judgment in plaintiff's favor on liability. By order dated November 10, 2009, this court denied the cross-motion for failing to demonstrate that she would have prevailed on the underlying case which was never brought (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 835 N.Y.S.2d 534 [2007]). It is this motion which plaintiff seeks to renew based on recently obtained evidence. [*2]

On November 12, 2010, this court, with the consent of all parties, adjourned the instant motion without date pending resolution of the parties appeal of this court's decisions on motion sequence number five and six. The parties could restore the motion to the calendar when they become aware fo the issuance of a decision by the Appellate Division.

By decision issued on November 9, 2010, and filed with the King's County Clerk's office on November 23, 1010, the Supreme Court Appellate Division, Second Department affirmed this court's decision on motion sequence number five and six (Greene v. Sager, 78 AD3d 777, 910 N.Y.S.2d 546 [2nd Dept., 2010]).

On November 19, 2010, after restoring the instant cross-motion to the calendar at the parties request, hearing oral argument and reviewing plaintiff's newly discovered evidence, this court granted renewal of the cross-motion sequence number six and adjourned the matter to January 7 and February 15, 2011 for further argument. On February 15, 2011, the court reserved decision on the instant motion.

Defendants joined issue with a verified answer dated January 18, 2008. A note of issue was filed on July 10, 2009.

Plaintiff's instant motion contains an affirmation of counsel dated August 10, 2010 and eight annexed exhibits labeled 1 through 8. Exhibit 1 is a copy of defendants' prior motion for summary judgement, filed under motion sequence number five on September 9, 2009. That motion contained a memorandum of law and three exhibits, labeled 1A through 1C. Exhibit 1A is a copy of the instant summons and verified complaint. Exhibit 1B is a copy of the defendants' verified answer dated January 18, 2008. Exhibit 1C is the transcript of plaintiff's deposition taken on December 11, 2008.

Exhibit 2 is a copy of plaintiff's prior cross-motion for partial summary judgement, filed under motion sequence number six on September 18, 2009. The motion consists of an attorney's affirmation and nine exhibits, labeled A-I, expressed herein as "2A"-"2I."

Exhibit 2A consists of a copy of defendant's prior cross-motion seeking summary judgment, filed under motion sequence number one, on March 4, 2008. Exhibit 2B consists of a copy of this court's order dated May 9, 2008, which denied defendants' prior motion for summary judgment under motion sequence number one and plaintiff's prior cross-motion for summary judgment filed under motion sequence number two. Exhibit 2C consists of a copy of correspondence from defendants to Keyspan Energy requesting "a roadway search" in front of 203-09 Hollis Avenue, Queens, New York. Exhibit 2D is a copy of letter from defendants to the plaintiff dated October 23, 2007 notifying plaintiff that her claim was barred by the statute of limitations. Exhibit 2E is a copy of the deposition transcript of defendant Marcel Sager taken on February 11, 2009. Exhibit 2F is a copy a Kings County Supreme Court order dated June 16, [*3]2009, ordering defendants Karen Goldberg Sager and Marcel Sager to appear for an additional examination before trial and to answer questions related to the standard of representation received by plaintiff. Exhibit 2G is a copy of the deposition transcript of defendant Marcel Sager taken on July 29, 2009 and a cover letter from plaintiff's counsel to defendants' counsel. Exhibit 2G is a copy of the deposition transcript of defendant Karen Goldberg Sager taken on July 29, 2009 and a cover letter from plaintiff's counsel to defendants' counsel. Exhibit 2I is the affirmation of Gerald A. Garber, dated September 16, 2009, in support of plaintiff's cross-motion for summary judgment.

Exhibits 3 and 4 are copies of responses received from the New York City Department of Transportation pertaining to defendants' FOIL requests of November 2 and 21, 2007. Exhibit 5 consists of a copy ofthe decision, Emmitt v. City of New York, 66 AD3d 504 [1st Dept., 2009]. Exhibit 6 consists of copies of documents received by plaintiff's counsel via FOIL request from Keyspan Energy purportedly evidencing that there were permits given by the City of New York authorizing Keyspan Energy to open up the roadway where plaintiff allegedly sustained slip and fall injuries. Exhibit 7 is a letter sent by defendants to Keyspan Energy requesting Keyspan's records related to the purported location of plaintiff's injuries. Exhibit 8 consists of copies of the subpoena duces tecum demanding records from National Grid on behalf of plaintiff's counsel and National Grid's response to that demand in the form of work records purporting to evidence road work at the time and place of plaintiff's alleged injuries.

Defendants jointly opposed plaintiff's motion for leave to renew with the affidavit of R. Evon Idahosa and two exhibits, labeled A-B. Exhibit A is a copy of this court's order dated November 10, 2009, denying plaintiff's cross- motion for partial summary judgment under motion sequence number six. Exhibit B is a copy of a notice of claim by the plaintiff against the City of New York.

Plaintiff responded to defendants' opposition with an attorney's affirmation.

Defendants served superceding opposition papers to plaintiff's instant cross-motion consisting of their attorney's affidavit and four exhibits labeled A-D. Exhibit A is this court's order denying plaintiff's previous cross-motion for summary judgment dated November 1, 2009. Exhibit B is a copy of a subpoena to appear for deposition served by defense counsel upon National Grid. Exhibit C is a copy of the deposition transcript of a National Grid representative taken on January 5, 2011. Exhibit D is a copy of a notice of claim by the plaintiff against the City of New York.

Plaintiff responded to defendants' superceding opposition papers with an attorney's affirmation.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72, 760 N.Y.S.2d 397 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923, 597 N.Y.S.2d 653 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 NY2d at 324). [*4]

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 and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Alizio v. Feldman, __ AD3d __, 918 N.Y.S.2d 218 [2nd Dept., 2011]; see, Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 N.Y.S.2d 534 [2007]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (id).

"Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Healy v. Finz & Finz, __ AD3d __ [2nd Dept., 2011]; citing, Northrop v. Thorsen, 46 AD3d 780, 782, 848 N.Y.S.2d 304 [2nd Dept., 2007]).

CPLR 214 (5) imposes a three-year limitation period, with certain exceptions, on "an action to recover damages for a personal injury." (See, Giordano v. Market Am., Inc., 15 NY3d 590, 915 N.Y.S.2d 884 [2010])

The elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (Lapidus v. State, 57 AD3d 83, 866 N.Y.S.2d 711 [2nd Dept., 2008]). "To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" (Scott v. Beverly Hills Furniture, 30 AD3d 577, 578, 817 N.Y.S.2d 381 [2nd Dept., 2006]; citing Goldman v. Waldbaum, 248 AD2d 436, 669 N.Y.S.2d 669 [2nd Dept., 1999]). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (Larsen v. Congregation B'Nai Jeshurum of Staten Island, 29 AD3d 643, 815 N.Y.S.2d 187 [2nd Dept., 2006]).

A "legal malpractice action has often been described as a trial within a trial. This is so because the plaintiff must adduce evidence that shows at least a likelihood that he would prevail on the underlying merits of the case." (Landau, P.C. v. LaRossa, Mitchell & Ross, 27 Misc 3d 1027(A), 910 N.Y.S.2d 406 [NY Sup. Crt., 2010]).

A plaintiff's burden of proof in a legal malpractice action is a heavy one. The plaintiff must prove first the hypothetical outcome of the underlying litigation and, then, the attorney's liability for malpractice in connection with that litigation (Lindenman v. Kreitzer, 7 AD3d 30, 775 N.Y.S.2d 4 [1st Dept., 2004]). The requirement of "proving a case within a case' ... is a distinctive feature of legal malpractice actions arising from an attorney's alleged negligence in preparing or conducting litigation." Id. at 34. "It adds an additional layer to the element of proximate cause, requiring the jury to find the hypothetical outcome of other litigation before finding the attorney's liability in the litigation before it. Id. at 34. Only after the plaintiff establishes that he would have recovered a favorable judgment in the underlying action can he proceed with proof that the attorney engaged to represent him in the underlying action was negligent in handling that action and that the attorney's negligence was the proximate cause of the plaintiff's loss since it prevented him from being properly compensated for his loss. Id. at 34.

The new evidence presented by plaintiff in the form of records allegedly showing that non-party National Grid opened the roadway at the site of plaintiff's accident are insufficient to make a prima facie case that plaintiff would have prevailed against the now ascertainable [*5]defendant, National Grid. It is noted that National Grid was formerly known as Keyspan. Specifically, plaintiff's new evidence fails to make the prima facie case that National Grid, or any other ascertainable defendant or defendants, caused or had actual or constructive notice of the alleged condition which caused plaintiff's injury. By not making a prima facie showing of National Grid's liability to plaintiff for her injuries, plaintiff has not made a prima facie showing that the defendants' legal practice proximately caused her to sustain damages by the loss of her potential claim.

Therefore, having failed to make a prima facie case in the underlying personal injury action, the court need not consider whether defendants have raised a triable issue of fact as to the underlying claim. (See, Marmer v. If USA Express, Inc., 73 AD3d 868, 869 [2nd Dept., 2010]).

Plaintiff has therefore not made a prima facie showing that defendants' breach of its duty proximately caused the plaintiff to sustain actual and ascertainable damages. Plaintiff's cross-motion for summary judgment on liability in her favor against the defendants is denied.

The foregoing constitutes the decision and order of this court.

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