Bittar v New Growing, Inc.

Bittar v New Growing, Inc. 2012 NY Slip Op 03100 Decided on April 24, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 24, 2012
Mazzarelli, J.P., Sweeny, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
7460 111522/07

[*1]Jorge Bittar, et al., Plaintiffs-Appellants,

v

New Growing, Inc., et al., Defendants-Respondents.




Kenneth J. Ready & Associates, Mineola (Kenneth J. Ready of
counsel), for appellants.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L.
Gokhulsingh of counsel), for respondents.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 14, 2011, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff fell after exiting the restroom in defendants' restaurant. There was a single step that separated the dining area from where the restroom was located. Plaintiff was unable to identify what caused his fall, and he testified that the lighting conditions were adequate. Moreover, defendants demonstrated that the subject step was not inherently dangerous and there were several signs warning of the
drop (see Remes v 513 W. 26th Realty, LLC, 73 AD3d 665, 666 [2010]; Broodie v Gibco Enters., Ltd., 67 AD3d 418 [2009]).

Plaintiff's opposition failed to raise a triable issue of fact. The record does not support plaintiff's argument that the step created "optical confusion" (see Langer v 116 Lexington Ave., Inc., 92 AD3d 597, 599 [2012]; compare Saretsky v 85 Kenmare Realty Corp., 85 AD3d 89 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 24, 2012

CLERK