ENGLER v. KALMANOWITZ (2009)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 1, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Defendants in this legal malpractice action demonstrated plaintiff could not prove that but for their alleged negligence, she would have prevailed on the merits in the underlying litigation (see e.g. Davis v. Klein, 88 N.Y.2d 1008, 648 N.Y.S.2d 871, 671 N.E.2d 1268 [1996] ).   Plaintiff alleged that Celebrity Cruise Lines had an open seam in its carpet, which created a tripping hazard when pressure was applied from pedestrian traffic.   She failed, however, by either her witnesses or her expert, to show that defendants had notice of this allegedly defective condition.   Witnesses for both sides testified that this open seam was not visibly noticeable (see Cooper v. Kelner & Kelner, 45 A.D.3d 323, 844 N.Y.S.2d 292 [2007] ).   Plaintiff's expert's attestation that the carpet's adhesive had lost its holding strength over time, causing the seam to open, was insufficient to establish notice, since it failed to show that the alleged defect was visible and apparent for a sufficient period of time to permit the ship operators to discover and remedy it (see Peffers v. Hilton Hotels Corp., 279 A.D.2d 386, 720 N.Y.S.2d 27 [2001] ).