DAVIS v. Joseph Del Gatto, et al., Defendants. (2001)

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered October 19, 2000, which, to the extent appealed from as limited by the brief, denied defendants-appellants' motion for summary judgment, unanimously affirmed, without costs.

Plaintiff commenced this action to recover for legal malpractice, alleging, inter alia, that defendant-appellant attorneys, retained by him in the aftermath of his injury in a construction site accident, failed timely to commence an action to recover for his harm upon Labor Law or common-law theories.   Defendants-appellants' motion for summary judgment was properly denied since their showing in support of summary adjudication failed to establish their entitlement to judgment as a matter of law (see, Pappalardo v. New York Health & Racquet Club, 279 A.D.2d 134, 140, 718 N.Y.S.2d 287).   Material issues of fact precluding an award of summary judgment to appellants remain, including whether there was a general contractor that would have been strictly liable to plaintiff under the Labor Law (see, Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316, 445 N.Y.S.2d 127, 429 N.E.2d 805), whether the Industrial Development Agency that owned the work site where the accident occurred would have been considered a non-owner for Labor Law purposes as a matter of law in 1989 (cf., Collins v. County of Monroe Industrial Dev. Agency, 167 A.D.2d 914, 561 N.Y.S.2d 995, appeal dismissed 77 N.Y.2d 874, 568 N.Y.S.2d 915, 571 N.E.2d 85), and whether discretionary leave to file a late notice of claim against that agency would have been available (see, Perry v. City of New York, 133 A.D.2d 692, 693, 519 N.Y.S.2d 862).   Appellants have likewise failed to demonstrate the absence of issues of fact against defendant successor law firm.