McNALLY v. EAST TWINS ENTERPRISES INC (2005)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 5, 2003, which granted the motion by defendant East Twin Enterprises, Inc. d/b/a The Star (East Twins) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.   Order, same court and Justice, entered December 5, 2003, which granted defendant Bruce Slovin's motion for summary judgment dismissing the complaint as against him, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated as against Slovin.

 While plaintiff was patronizing defendant East Twins' restaurant, he allegedly suffered injury when he tripped and fell on a step in a restroom in the building where the restaurant was located.   Defendant Bruce Slovin, the building's owner, made the restroom available for the use of the customers of his tenants in the building, including East Twins.   We affirm the grant of summary judgment to East Twins based on its uncontroverted showing that it had no control over the restroom in question, which was located in a common area of the building that was not part of the premises leased to it.   We reverse, however, the grant of summary judgment to Slovin, who, as owner of the premises, had control over the restroom. Notwithstanding that the step evidently had been adequately maintained and was not affected by any structural defect, an issue of fact exists on this record as to whether the step was an unreasonably dangerous “trap for the unwary” (Mauriello v. Port Auth. of New York & New Jersey, 8 A.D.3d 200, 779 N.Y.S.2d 199 [2004] ) by reason of the likelihood that, given the step's placement between the doorway to the small restroom and the toilet within, it would be overlooked (see Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 [2004];  see also Wrubel v. Rose Boutique II, Inc., 13 A.D.3d 264, 265, 787 N.Y.S.2d 263 [2004];  De Conno v. Golub Corp., 255 A.D.2d 734, 735, 680 N.Y.S.2d 727 [1998] ).