DiPietro v. Seth Rotter, P.C.

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 plaintiff 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.