BECOVIC v. POISSON HACKETT (2008)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 13, 2007, which denied defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for spoliation sanctions, unanimously reversed with respect to the denial of summary judgment, on the law, without costs, the motion granted, the complaint dismissed and the appeal therefrom otherwise dismissed as academic.   The Clerk is directed to enter judgment accordingly.

In this legal malpractice action, plaintiffs are unable to demonstrate that they would have succeeded in the underlying personal injury action “but for” defendants' conduct (see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ).   Contrary to the motion court's conclusion, plaintiffs cannot show that the defendants in the underlying action created the allegedly dangerous condition by an affirmative act of misfeasance (see Mercer v. City of New York, 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443 [1996];  Kelly v. Berberich, 36 A.D.3d 475, 476-477, 828 N.Y.S.2d 332 [2007] ), and the claim that said defendants failed to maintain the garage sign that was purportedly the instrumentality that resulted in the injury is not sufficient for this purpose.   Plaintiffs also failed to raise an issue of fact regarding notice of the condition, since their sole opposition was hearsay (see Wertheimer v. New York Prop. Ins. Underwriting Assn., 85 A.D.2d 540, 541, 444 N.Y.S.2d 668 [1981] ).   In view of the dismissal of the instant action, we need not address the arguments on plaintiffs' cross appeal for spoliation sanctions.   We note, however, that plaintiffs' position is lacking given the long period of inaction by their attorneys in this action in failing to avail themselves of the opportunity to seek third-party discovery.