Stawski v Pasternack, Popish & Reif, P.C. (2007 NY Slip Op 50784(U))

Stawski v Pasternack, Popish & Reif, P.C.

2007 NY Slip Op 50784(U) [15 Misc 3d 135(A)]

Decided on April 16, 2007

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Adam Stawski and Alicia Stawski, Plaintiffs-Respondents,

against

Pasternack, Popish & Reif, P.C., Victor Pasternack, Esq., Abraham Pasternack, Esq., Devon Reif, Esq., and John or Jane Doe 1-10 (whose names are presently unknown and who are partners in the defendant law firm Pasternack, Popish & Reif, P.C.), Defendants-Appellants, -and- Michael B. Parson, Esq., Ampel & Ampel, Esq., Kenneth Ampel, Esq., and John or Jane Doe 1-10 (whose names are presently unknown but who are partners in, or associates of, the defendant law firm Ampel & Ampel), Defendants.

Defendants Pasternack, Popish & Reif, P.C., Victor Pasternack, Esq., Abraham Popish, Esq., and Devon Reif, as limited by the briefs, appeal from that portion of an order of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), entered September 14, 2005, which denied their motion for summary judgment dismissing plaintiffs' action for legal malpractice as it relates to defendants' alleged failure to prosecute an underlying action based on Labor Law § 240(1).

PER CURIAM:
Order (Jeffrey K. Oing, J.), entered September 14, 2005, to the extent appealed from, reversed, with $10 costs, motion granted and that portion of plaintiff's action relating to Labor [*2]Law § 240(1) is dismissed.

Plaintiff, a carpenter, was injured when a cinder block fell and struck him while he was installing a window frame during the construction of a new high school in Manhattan. The cinder block had been temporarily removed to enable inspection of pipes within a cinder block column.

Defendant-appellants' motion, to the extent that it sought dismissal of the malpractice action premised on their failure to prosecute an underlying claim based on Labor Law § 240(1), should have been granted. The cinder block "that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell, and thus Labor Law 240(1) does not apply. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected" (Roberts v Gen. Elec. Co., 97 NY2d 737, 738 [2002], quoting Narducci v. Manhasset Bat Assocs., 96 NY2d 259, 268 [2001]).
This Constitutes the Decision and Order of the Court.
Decision Date: April 16, 2007