Majority
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered March 6, 2014, as granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging legal malpractice.
Ordered that the order is affirmed insofar as appealed from, with costs.
On April 14, 2010, the plaintiff allegedly was injured while working for a contractor providing services to the New York City Parks Department (hereinafter the Parks Department) at Van Cortlandt Park in the Bronx. The plaintiff alleges that he fell from the grating of a seeding machine as it was being pulled by a tractor in the process of seeding a newly constructed cricket field. Following the accident, the plaintiff received Workers’ Compensation benefits. Approximately 10 months after the accident, upon receiving a letter from the Workers’ Compensation Board advising him to retain counsel with respect to his benefits, he retained the defendant law firm. While representing the plaintiff on his Workers’ Compensation claim, the defendant did not pursue any negligence or Labor Law claims on his behalf against the alleged owners of Van Cortlandt Park, the City of New York and the Parks Department. Such claims, had they been pursued, would have necessitated seeking leave to serve a late notice of claim.
In October 2011, the plaintiff commenced this action, alleging, inter alia, that, but for the defendant’s malpractice, he would have prevailed in a personal injury action against the City and the Parks Department due to their negligence and violations of the Labor Law. Thereafter, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging legal malpractice.
“To state a cause of action to recover damages for legal
Thus, “[a] defendant moving for summary judgment in a legal malpractice action must . . . establish prima facie that the plaintiff cannot prove at least one of the essential elements of the malpractice claim” (Wray v Mallilo & Grossman, 54 AD3d at 329 ; see Marino v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d at 566 ). Contrary to the plaintiff’s contention, even if the defendant had successfully moved on the plaintiff’s behalf for leave to serve a late notice of claim against the City and the Parks Department, the plaintiff would not have prevailed in a subsequent personal injury action against them, as he had no viable common-law negligence or Labor Law claim.
“To make a prima facie showing of liability under Labor Law § 240 (1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” (Singh v City of New York, 113 AD3d 605 , 606 [2014]). Here, the defendant established that the plaintiff would not have been successful against the City or the Parks Department on a cause of action asserting a violation of Labor Law § 240 (1), because the plaintiff would not have been able to show that the accident occurred in the context of “work performed on ‘buildings or structures’ ” (Vargas v State of New York, 273 AD2d 460 , 461 [2000], quoting Labor Law § 240 [1]). Similarly, the plaintiff would not have been able to assert a viable cause of action pursuant to Labor Law § 241 (6), since he was involved with seeding a cricket field, rather than in “construction, excavation or demolition work” (Labor Law § 241 [6]). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact with respect to whether the work he performed was covered by Labor Law § 240 (1) or § 241 (6).
Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging legal malpractice.
Mastro, J.P., Dillon, Hinds-Radix and Maltese, JJ., concur.
Cases cited
- Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP 87 AD3d 566 at 566 p. 921
- Leder v. Spiegel 9 NY3d 836 at 837 p. 921
- Wray v. Grossman 54 AD3d 328 at 328-329 p. 921
- Vargas v. State 273 AD2d 460 at 461 p. 921
- Rodriguez v. Trades Construction Services Corp. 121 AD3d 962 at 964 p. 922
- Ortega v. Puccia 57 AD3d 54 at 61 p. 922
- Rizzuto v. L.A. Wenger Contracting Co. 91 NY2d 343 at 352 p. 922
- Russin v. Louis N. Picciano & Son 54 NY2d 311 at 317 p. 922
- Gallello v. MARJ Distributors, Inc. 50 AD3d 734 at 735 p. 922
- Dooley v. Peerless Importers, Inc. 42 AD3d 199 at 204-205 p. 922
- Guerra v. Port Authority 35 AD3d 810 at 811 p. 922
- Perri v. Gilbert Johnson Enterprises, Ltd. 14 AD3d 681 at 683 p. 922
- Reynolds v. John T. Brady & Co. 38 AD2d 746 at 746-747 p. 922
- Pacheco v. Halstead Communications, Ltd. 90 AD3d 877 p. 922