Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C. , 726 N.Y.S.2d 86 ( 2001 )

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered October 19, 2000, which, to the extent appealed from as limited by the brief, denied defendants-appellants’ motion for summary judgment, unanimously affirmed, without costs.

Plaintiff commenced this action to recover for legal malpractice, alleging, inter alia, that defendant-appellant attorneys, retained by him in the aftermath of his injury in a construction site accident, failed timely to commence an action to recover for his harm upon Labor Law or common-law theories. Defendants-appellants’ motion for summary judgment was properly denied since their showing in support of summary adjudication failed to establish their entitlement to judgment as a matter of law (see, Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 140). Material issues of fact precluding an award of summary judgment to appellants remain, including whether there was a general contractor that would have been strictly liable to plaintiff under the Labor Law (see, Russin v Picciano & Son, 54 NY2d 311, 316), whether the Industrial Development Agency that owned the work site where the accident occurred would have been considered a non-owner for Labor Law purposes as a matter of law in 1989 (cf., Collins v County of Monroe Indus. Dev. Agency, 167 AD2d 914, appeal dismissed 77 NY2d 874), and whether discretionary leave to file a late notice of claim against that agency would have been available (see, Perry v City of New York, 133 AD2d 692, 693). Appellants have likewise failed to demonstrate the absence of issues of fact against defendant successor law firm. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Marlow, JJ.