Peck v. 2-J, LLC

• Decision Date: 06 November 2008
• Docket Number: 4507
• Parties: ROBERT PECK, Respondent-Appellant, v. 2-J, LLC, et al., Appellants-Respondents, and VAN BRODY ARCHITECT, P.C., Respondent.
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 277

866 N.Y.S.2d 661

2008 NY Slip Op 08429

ROBERT PECK, Respondent-Appellant, v. 2-J, LLC, et al., Appellants-Respondents, and VAN BRODY ARCHITECT, P.C., Respondent.

4507

Appellate Division of the Supreme Court of the State of New York, First Department.

November 6, 2008.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 14, 2008, which, in an action for personal injuries sustained in a fall allegedly caused by inadequate lighting on stairs in commercial premises owned by and leased to defendants-appellants, insofar as appealed from, granted plaintiff's motion (1) to vacate a prior order dismissing

the complaint because of plaintiff's failure to appear at a prenote of issue court conference, and (2) for summary judgment on the issue of liability, to the extent of vacating the prior order, and denied defendants-appellants' cross motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant defendant premises owner summary judgment dismissing the complaint as against it, and otherwise affirmed, except the owner's appeal from that portion of the order that granted vacatur as to it unanimously dismissed as academic, without costs. The Clerk is directed to enter judgment dismissing the complaint as against defendant 2-J, LLC.

Plaintiff's default was properly vacated on a showing by his attorney that a prior court order had erroneously scheduled the conference on a day of the week other than Tuesday, the one day reserved for conferences under the court's part rules, and the attorney's subsequent miscalendaring of the rescheduled date. We note that the prior order scheduled the conference for Monday, June 25, 2005, the default was taken on June 26, plaintiff's attorney learned of the default on June 27 when he appeared in court for the conference, and plaintiff expeditiously moved to vacate the default by motion dated June 30. With respect to the merits, plaintiff's deposition testimony submitted in support of the motion to vacate was not unduly vague, and plaintiff's expert's affidavit that asserts that inadequate lighting caused plaintiff's fall was based on light measurement readings and was not speculative; thus those submissions were not contradicted by plaintiff's reply. The other possible causes of plaintiff's fall that defendants posit merely raise issues of fact. However, the out-of-possession defendant owner could not be liable for the claimed inadequate...