WIENER v. PAZER EPSTEIN AND JAFFE PC (2012)

Order (Andrea Masley, J.), entered September 23, 2011, modified to deny defendant's motion for summary judgment and to reinstate the complaint; as modified, order affirmed, with $10 costs to plaintiffs-appellants.

Plaintiffs' legal malpractice claim is not ripe for summary dismissal, since the defendant law firm failed in its burden to demonstrate the absence of a triable issue as to whether plaintiffs would have prevailed to some extent in the underlying action but for defendant's alleged malpractice (see Cruz v. Durst Law Firm, 273 A.D.2d 120 [2000] ), i.e., failing in the underlying action to identify and timely serve a notice of claim upon the Hudson River Park Trust (“Trust”), the record owner of the bicycle path on which the first-named plaintiff was injured.

Giving plaintiffs the benefit of every favorable inference (see Ortega v. Everest Realty LLC, 84 A.D.3d 542, 545 [2011] ), the record contains circumstantial evidence sufficient to permit a fact-finder to determine that the condition which allegedly caused the first-named plaintiff to fall from his bicycle-described as a six foot by three foot patch of a “glass bead-like material used in the painting of bike ways ․ to provide better visibility”—was created by a contractor retained by the Trust (see Schneider v. King's Highway Hosp. Ctr., 67 N.Y.2d 743, 744–745 [1986]; Chimilio–Ramos v. Banguera, 62 A.D.3d 538 [2009]; Carboy v. Cauldwell–Wingate Co., Inc. 43 A.D.3d 261, 262–263 [2007]; Berner v.2061 A Bartow Food Corp., 279 A.D.2d 275 [2001] ), for which the Trust may have been held vicariously liable, if properly sued in the underlying action, based upon its nondelegable duty as the owner of the public bicycle path (see Sarisohn v. 341 Commack Rd., Inc., 89 A.D.3d 1007, 1008 [2011]; Hill v. Fence Man, Inc., 78 A.D.3d 1002, 1004 [2010]; Correa v. City of New York, 66 A.D.3d 573, 574–575 [2009] ). Thus, the lack of prior notice to the Trust of the hazard was not dispositive of the Trust's potential liability (see Jabbour v. Finnegan's Moving & Warehouse Corp., 299 A.D.2d 192 [2002]; Katz v. City of New York, 231 A.D.2d 448 [1996] ).

Defendant's summary judgment evidence failed to conclusively establish that a contractor retained by the Trust did not cause or create the pathway condition that allegedly caused the first-named plaintiff's injuries. The deposition testimony of the Department of Transportation (“DOT”) employee (Patel) did not serve to absolve the Trust of potential liability, since Patel testified that “it is possible” that the Trust could have contracted for the repair or painting of the bike path without DOT's knowledge.

The record so far developed raises triable issues as to whether plaintiffs would have prevailed in the underlying personal injury litigation “but for” defendant's negligence (cf. Wo Yee Hing Realty Corp. v. Stern, –––A.D.3d ––––, 949 N.Y.S.2d 50, 2012 N.Y. Slip Op 05792 [1st Dept 2012] ).

PER CURIAM.