| Peck v 2-J, LLC |
| 2008 NY Slip Op 08429 [56 AD3d 277] |
| November 6, 2008 |
| Appellate Division, First Department |
| Robert Peck, Respondent-Appellant, v 2-J, LLC, et al.,Appellants-Respondents, and Van Brody Architect, P.C.,Respondent. |
—[*1] RAS Associates, PLLC, White Plains (Luis F. Ras of counsel), for respondent-appellant. Milber Makris Plousadis & Seiden, Woodbury (Thomas M. Fleming II of counsel), for VanBrody Architect, P.C., respondent.
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 inadequatelighting on stairs in commercial premises owned by and leased to defendants-appellants, insofaras appealed from, granted plaintiff's motion (1) to vacate a prior order dismissing the complaintbecause of plaintiff's failure to appear at a pre-note of issue court conference, and (2) forsummary judgment on the issue of liability, to the extent of vacating the prior order, and denieddefendants-appellants' cross motion for summary judgment dismissing the complaint as againstthem, unanimously modified, on the law, to grant defendant premises owner summary judgmentdismissing the complaint as against it, and otherwise affirmed, except the owner's appeal fromthat portion of the order that granted vacatur as to it unanimously dismissed as academic, withoutcosts. 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 orderhad erroneously scheduled the conference on a day of the week other than Tuesday, the one dayreserved for conferences under the court's part rules, and the attorney's subsequentmiscalendaring of the rescheduled date. We note that the prior order scheduled the conference forMonday, June 25, 2005, the default was taken on June 26, plaintiff's attorney learned of thedefault on June 27 when he appeared in court for the conference, and plaintiff expeditiouslymoved to vacate the default by motion dated June 30. With respect to the merits, plaintiff'sdeposition testimony submitted in support of the motion to vacate was not unduly vague, andplaintiff's expert's affidavit that asserts that inadequate lighting caused plaintiff's fall was basedon light measurement readings and was not speculative; thus those submissions were notcontradicted by plaintiff's reply. The other possible causes of plaintiff's fall that defendants posit[*2]merely raise issues of fact. However, the out-of-possessiondefendant owner could not be liable for the claimed inadequate lighting, despite its right toreenter under the lease, because the defendant tenant controlled the lighting level at its restaurant,and inadequate lighting does not constitute a significant structural or design defect that violates aspecific statutory building code provision (see Reyes v Morton Williams Associated Supermarkets, Inc., 50 AD3d496, 497 [2008]). Concur—Gonzalez, J.P., McGuire, Moskowitz, DeGrasse andFreedman, JJ.