Langer v. 116 Lexington Ave., Inc.

• Citation: 92 A.D.3d 597,939 N.Y.S.2d 370,2012 N.Y. Slip Op. 01492
• Parties: Bianca LANGER, et al., Plaintiffs–Appellants, v. 116 LEXINGTON AVENUE, INC., et al., Defendants–Respondents.
• Decision Date: 28 February 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01492
92 A.D.3d 597
939 N.Y.S.2d 370

Bianca LANGER, et al., Plaintiffs–Appellants,
v.
116 LEXINGTON AVENUE, INC., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Feb. 28, 2012.

[939 N.Y.S.2d 371]

Julien & Schlesinger, P.C., New York (Mary Elizabeth Burns of counsel), for appellants.

Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, New York (James V. Derenze of counsel), for respondents.

GONZALEZ, P.J., TOM, CATTERSON, RICHTER, ROMÁN, JJ.

[92 A.D.3d 597] Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 5, 2010, which, in an action for personal injuries, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff Bianca Langer was injured on November 10, 2007, when she fell on a five-inch single step transition at the entrance to a second-floor banquet room at a restaurant in midtown Manhattan. By summons and complaint dated January 15, 2008, plaintiff and her husband commenced a personal injury suit against the restaurant, the building owner, and two individual defendants, who are officers of the owner and co-managed the restaurant. Plaintiffs allege, inter alia, that the step was a dangerous condition that defendants negligently allowed to persist and of which defendants failed to warn. They further argued that the step violated sections of the New York City Building Code, including Administrative Code of the City of

[939 N.Y.S.2d 372]

N.Y. § 27–375(d)(2) and (f) (requiring a handrail for step[s] having less than two risers in succession), and § 27–370(d) (requiring a “ramp” in an “exit passageway” where there are fewer than two risers).

At the conclusion of discovery, defendants moved for summary judgment dismissing the complaint. Defendants argued, inter alia, that the step was not a latent dangerous condition, and even if it was, adequate warnings of the step were provided. [92 A.D.3d 598] In support of their motion, defendants submitted the affidavit of an engineering expert who opined that the step was clearly visible, and that the injury occurred as a result of plaintiff wife's carelessness in failing to make normal and expected observations of the area in front of her including the step. Plaintiffs' engineering expert countered in his affidavit that the similarity in the flooring of the hallway and the banquet room obscured the step.

In a decision and order dated August 3, 2010, the motion court granted defendants summary judgment and dismissed the complaint. The motion court found that plaintiffs failed to raise a triable issue of fact as to the existence of a latent defective condition, and disagreed with plaintiffs' contention that the step violated the Building Code. Since plaintiffs did not oppose defendants' motion as to the individual defendants, the court dismissed the complaint against them. On appeal, plaintiffs argue that the motion court erred in dismissing their complaint against the restaurant and building owner because the conditions of the step area created “optical confusion,” rendering the step dangerous.

For the reasons set forth below we find that the step was not a latent defective condition. There is no evidence of “optical confusion” and...