BOARMAN v. SIEGEL KELLEHER AND KAHN (2007)

Plaintiff retained defendant Siegel, Kelleher and Kahn (Siegel) to represent her in an action to recover damages for injuries she sustained when she slipped on the steps of a bus.   Plaintiff thereafter commenced this legal malpractice action against, inter alia, Siegel and defendant Robert D. Steinhaus (collectively, defendants) alleging that they failed to file a notice of claim and commence an action on her behalf in a timely manner.   Defendants moved for, inter alia, summary judgment dismissing the complaint against them on the ground that plaintiff could not have prevailed in the underlying action and thus could not establish that defendants' negligence “ ‘prevented [her] from being properly compensated for [her] loss' ” (Nazario v. Fortunato & Fortunato, PLLC, 32 A.D.3d 692, 696, 822 N.Y.S.2d 236).   According to defendants, there was a storm in progress when plaintiff fell, and the defendants in the underlying action therefore could not be held liable to plaintiff.

As a preliminary matter, we note that plaintiff is correct that the notice of appeal is defective inasmuch as it describes the appeal as having been taken from a judgment.   No judgment was issued, and defendants actually are appealing from an order entered in September 2006.   That order is the only order issued by Supreme Court in this action, and we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from that order (see CPLR 5520[c];  Kimmel v. State of New York, 38 A.D.3d 1155, 831 N.Y.S.2d 629).

 We conclude that the court properly denied that part of the motion for summary judgment dismissing the complaint against defendants.   We agree with defendants that the storm in progress rule may apply despite the allegation of plaintiff that she slipped inside the bus rather than in an outdoor area (see Zonitch v. Plaza at Latham, 255 A.D.2d 808, 680 N.Y.S.2d 304;  see also Blackwood v. New York City Tr. Auth., 36 A.D.3d 522, 828 N.Y.S.2d 354;  Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 750 N.Y.S.2d 91;  Hussein v. New York City Tr. Auth., 266 A.D.2d 146, 699 N.Y.S.2d 27).   Indeed, “[i]t would be unreasonable to expect the [owner or operator] to constantly clean the floor of its buses during an ongoing storm” (Spooner, 298 A.D.2d at 575-576, 750 N.Y.S.2d 91).   We agree with plaintiff, however, that defendants failed to establish their entitlement to judgment as a matter of law.   Defendants' submissions establish that the storm had ended at the time of plaintiff's fall, and there is a triable issue of fact whether a reasonable period of time had passed since the abatement of the storm to impose a duty on the defendants in the underlying action to rectify the alleged slippery condition on the stairs (see Williams v. Scruggs Community Health Care Ctr., 255 A.D.2d 982, 680 N.Y.S.2d 771;  cf. Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748;  Blackwood, 36 A.D.3d 522, 828 N.Y.S.2d 354;  Zonitch, 255 A.D.2d at 808-809, 680 N.Y.S.2d 304).  “Once there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable” (Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 346, 737 N.Y.S.2d 27;  see Cappola v. Michael's Banquet Facility, 8 A.D.3d 1100, 778 N.Y.S.2d 645).   We have considered defendants' remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: