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Russo v. Feder11/21/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Plaintiff appeals from an order of the Supreme Court, New York County (Jane Solomon, J.), entered May 9, 2001, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment.
(*2) The issue raised in this appeal is whether plaintiff's legal malpractice claim against former counsel rests on bare speculation regarding what other counsel might have achieved and ignores the deficiency in the underlying personal injury action, so as to warrant dismissal of the malpractice claim.
The legal malpractice action derives from counsel's representation of plaintiff in an underlying personal injury action. Plaintiff, in the company of a friend, James McMahon, was in a Pergament store in the Centereach Mall, Long Island on January 12, 1993 when he fell in the vicinity of the exit doors, about 50 to 80 feet away from the checkout counter that he had just left. He remembered that the area was well lit. From a conversation with McMahon, plaintiff subsequently concluded that he had tripped on a "throw rug" near the entrance. Plaintiff himself had not seen the rug before he fell. He remembered tripping, though, when his foot caught on something, though he did not see what it was. As he tripped, he hit a wall and then fell over backwards, and hit his head on the cement floor. He remembered the carpet was about eight feet by four feet, maroon colored with a black edge, and that it had not moved or slipped while he was on it. He did not recall whether it was during his first step or later steps that he fell. McMahon had indicated to him, though, that he believed that the turned-up or ripped edging of the carpet had caused the fall. McMahon related this to plaintiff when plaintiff was in the hospital. Plaintiff was unable to get names of witnesses. He had been to that Pergament store on prior occasions but had never noticed any problems with the carpeting.
McMahon testified at his own deposition that he had observed plaintiff trip on the carpet about six feet from the wall adjoining the doorway, at which time plaintiff first hit his head on the wall and then staggered backward and hit his head on the floor. When McMahon looked at the carpet, it was "up," so that he assumed that plaintiff had tripped on it. Although he saw plaintiff trip, he did not actually see plaintiff trip on the rug. However, he did see the rug "all curled up" shortly afterwards. He described it as "folded over . . . curled up on top -- the end of it was on top of it like two feet in . . . was (*3)folded over on top of the other mat." The rise was about three or four inches. About a minute had elapsed between the accident and this observation. Someone took photos about ten minutes later, and during the interim, he had not observed anyone touch the rug. Specifically, he had not uncurled the rug himself.
Frank Pellegrino, a store employee who responded, took photos and filled out the accident report which is included in our record. Pellegrino indicated that no one had ever complained about the carpeting before, that although the carpet was not attached to the floor, it did not easily slide, that when he arrived, it was not bunched up (apparently consistent with the photos), that he had not moved the carpet, and that it was not torn in any manner. He also noted that the accident report reflected that plaintiff did not know what caused him to trip and that McMahon had surmised he tripped over the carpet.
The various defendants subsequently moved for summary judgment dismissing the complaint. They argue
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