The standard for legal malpractice.

The First Department denied summary judgment to defendant-law firm in this legal malpractice action, in Duffy-Duncan v. Berns & Castro, which was decided on November 29, 2007.

Defendant's failure to timely serve a Notice of Claim on the Transit Authority had precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on a subway platform. The court said that defendant failed to make a prima facie showing that, despite its failure to timely file, plaintiff could not have prevailed in the underlying action. The court found record evidence demonstrating that, because no discovery was conducted, it cannot be determined, as a matter of law, whether Transit had actual notice of the defective condition.

The court also said that defendant failed to establish that Transit lacked constructive notice of the condition on the platform. Transit submitted climatological reports, without an accompanying expert opinion, but they were insufficient since they were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx.