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September 27, 2016 – M&H Wins Partial Dismissal Of Case Against Residential Building Management Company

In this premises liability action, the Appellate Division, First Judicial Department, in accordance with M&H’s arguments on appeal, dismissed a claim against M&H’s clients, the owner of a high-rise, residential apartment building and its management company, finding that the alleged defect in the lobby of the building was nonactionable as a matter of law .

Atkinson v Key Real Estate Assoc., LLC
2016 NY Slip Op 06160
Decided on September 27, 2016
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 September 27, 2016
Friedman, J.P., Andrias, Richter, Gische, Kahn, JJ.

1716 104274/11

[*1]Jeanne Atkinson, Plaintiff-Respondent,


Key Real Estate Associates, LLC, et al., Defendants-Appellants.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.

Philip J. Dinhofer, LLC, Rockville Centre (Philip J. Dinhofer of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered April 20, 2016, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss so much of the complaint as is based on the height differential between a marble step and the bull-nosing on the front of that step, and otherwise affirmed, without costs.

The parties agree that the height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch. This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77-78 [2015]; Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]). Thus, this defect was trivial as a matter of law, and therefore nonactionable.

As defendants concede in their reply brief, issues of fact exist as to whether defendants’ failure to install handrails, pursuant to Administrative Code of the City of New York § 27-375(f)(1), was a proximate cause of plaintiff’s injuries.