DUFFY DUNCAN v. BERNS CASTRO (2007)

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered November 22, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action for legal malpractice, where defendants' admitted failure to timely serve a notice of claim on the New York City Transit Authority (NYCTA) precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on an elevated subway platform.   Defendants failed to make a prima facie showing that despite its failure to file a timely notice of claim on NYCTA, plaintiff could not have prevailed in the underlying action (see Boarman v. Siegel, Kelleher & Kahn, 41 A.D.3d 1247, 837 N.Y.S.2d 822 [2007] ).   The record evidence demonstrates that because of the lack of discovery conducted in the underlying action, it cannot be discerned whether NYCTA had actual notice of the defective condition.   Nor did defendants establish that NYCTA lacked constructive notice of the condition on the subject platform.   The certified climatological reports submitted by defendants, and unaccompanied by an expert opinion, were insufficient to demonstrate a lack of constructive notice inasmuch as the reports, evidencing temperature readings hovering around the freezing mark in the hours leading up to plaintiff's fall, were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx (see Ralat v. New York City Hous. Auth., 265 A.D.2d 185, 186, 693 N.Y.S.2d 561 [1999] ).

We have considered defendants' remaining contentions and find them unavailing.