Shivers v. Fishman

Appellate Division of the Supreme Court of New York

Shivers v. Fishman

280 A.D.2d 355, 720 N.Y.S.2d 342, 2001 N.Y. App. Div. LEXIS 1565

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

DecidedFebruary 15, 2001

StatusPublished

This text of 280 A.D.2d 355 (Shivers v. Fishman) 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

Shivers v. Fishman, 280 A.D.2d 355, 720 N.Y.S.2d 342, 2001 N.Y. App. Div. LEXIS 1565 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered August 12, 1999, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, summary judgment granted to defendants and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

In order to defeat defendants’ summary judgment motion in this legal malpractice action, plaintiff needed to raise a triable issue of material fact that demonstrated that she would have prevailed in the underlying slip and fall action but for defendants’ failure to properly commence it (see, Colleran v Rockman, 275 AD2d 222; Plentino Realty v Gitomer, 216 AD2d 87, lv denied 87 NY2d 805). However, she fails in this regard as a matter of law in that the record is bereft of any facts as to how her accident occurred, thus rendering it impossible to determine the likelihood that she would have prevailed. Her only relevant submissions were a conclusory statement in her complaint that she slipped and fell on ice at a certain time and place, and the affirmation of her attorney, who had no personal knowledge of the accident and who merely made a conclusory statement as to the liability of the entity purportedly responsible for snow removal at the time and place in question (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 342). Concur — Sullivan, P. J., Nardelli, Williams, Tom and Friedman, JJ.

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—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered August 12, 1999, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, summary judgment granted to defendants and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

In order to defeat defendants’ summary judgment motion in this legal malpractice action, plaintiff needed to raise a triable issue of material fact that demonstrated that she would have prevailed in the underlying slip and fall action but for defendants’ failure to properly commence it (see, Colleran v Rockman, 275 AD2d 222; Plentino Realty v Gitomer, 216 AD2d 87, lv denied 87 NY2d 805). However, she fails in this regard as a matter of law in that the record is bereft of any facts as to how her accident occurred, thus rendering it impossible to determine the likelihood that she would have prevailed. Her only relevant submissions were a conclusory statement in her complaint that she slipped and fell on ice at a certain time and place, and the affirmation of her attorney, who had no personal knowledge of the accident and who merely made a conclusory statement as to the liability of the entity purportedly responsible for snow removal at the time and place in question (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 342). Concur — Sullivan, P. J., Nardelli, Williams, Tom and Friedman, JJ.

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Bluebook (online)

280 A.D.2d 355, 720 N.Y.S.2d 342, 2001 N.Y. App. Div. LEXIS 1565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shivers-v-fishman-nyappdiv-2001.

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