DiPietro v. Seth Rotter, P.C.

Appellate Division of the Supreme Court of New York

DiPietro v. Seth Rotter, P.C.

5 A.D.3d 224, 773 N.Y.S.2d 397, 2004 N.Y. App. Div. LEXIS 2634

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 2004

StatusPublished

This text of 5 A.D.3d 224 (DiPietro v. Seth Rotter, P.C.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DiPietro v. Seth Rotter, P.C., 5 A.D.3d 224, 773 N.Y.S.2d 397, 2004 N.Y. App. Div. LEXIS 2634 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, New York County (Louis York, J.), entered June 13, 2003, which, in an action for legal malpractice, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

An issue of fact exists as to whether plaintiff, a building handyman burned when the door to the building’s incinerator flew open, would have obtained a favorable result in the action he brought against the incinerator maintenance company but for defendant attorneys’ alleged malpractice in not responding to discovery requests (see Zarin v Reid & Priest, 184 AD2d 385, 386 [1992]). That issue is raised by the deposition testimony of [225]*225plaintiff and two coworkers that the maintenance company’s servicemen were frequently at the building and were informed about the incinerator door opening when it was supposed to remain shut, and the affidavit of plaintiffs expert opining that the incinerator latch was defectively designed and that the defect contributed to the accident. We note that defendants did not submit an expert’s affidavit. Evidence of defendant Ripka’s participation in the underlying action while the malpractice was being committed, including defendant Rotter’s letter of resignation to plaintiff, raises an issue of fact as to whether plaintiff and Ripka were in an attorney-client relationship.

We have considered and rejected defendants’ other arguments. Concur—Andrias, J.P., Williams, Friedman and Marlow, JJ.

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Order, Supreme Court, New York County (Louis York, J.), entered June 13, 2003, which, in an action for legal malpractice, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

An issue of fact exists as to whether plaintiff, a building handyman burned when the door to the building’s incinerator flew open, would have obtained a favorable result in the action he brought against the incinerator maintenance company but for defendant attorneys’ alleged malpractice in not responding to discovery requests (see Zarin v Reid & Priest, 184 AD2d 385, 386 [1992]). That issue is raised by the deposition testimony of [225]*225plaintiff and two coworkers that the maintenance company’s servicemen were frequently at the building and were informed about the incinerator door opening when it was supposed to remain shut, and the affidavit of plaintiffs expert opining that the incinerator latch was defectively designed and that the defect contributed to the accident. We note that defendants did not submit an expert’s affidavit. Evidence of defendant Ripka’s participation in the underlying action while the malpractice was being committed, including defendant Rotter’s letter of resignation to plaintiff, raises an issue of fact as to whether plaintiff and Ripka were in an attorney-client relationship.

We have considered and rejected defendants’ other arguments. Concur—Andrias, J.P., Williams, Friedman and Marlow, JJ.

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Bluebook (online)

5 A.D.3d 224, 773 N.Y.S.2d 397, 2004 N.Y. App. Div. LEXIS 2634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dipietro-v-seth-rotter-pc-nyappdiv-2004.

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