MARIE ECKARDT, plf-res, v. STARR BUILDING REALTY LLC, Defendant-res-res

9933. MARIE ECKARDT, plf-res, v. STARR BUILDING REALTY LLC, Defendant-res-res — EAST TWIN ENTERPRISES, INC., d/b/a RHINEBECK GRILLE, Defendant-Appellant-res — Thomas M. Bona, P.C., White Plains (James C. Miller of counsel), for appellant-res — Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for res-res — Giuliano McDonnell & Perrone, LLP, New York (Matthew M. Gorden of counsel), for res — Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 26, 2012, which, inter alia, denied defendant Starr Building Realty LLC's (Starr) motion and defendant East Twin Enterprises, Inc. d/b/a/ Rhinebeck Grille's (East Twin) cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the cross motion, and dismiss the complaint as against East Twin, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

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9933. MARIE ECKARDT, plf-res, v. STARR BUILDING REALTY LLC, Defendant-res-res — EAST TWIN ENTERPRISES, INC., d/b/a RHINEBECK GRILLE, Defendant-Appellant-res — Thomas M. Bona, P.C., White Plains (James C. Miller of counsel), for appellant-res — Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for res-res — Giuliano McDonnell & Perrone, LLP, New York (Matthew M. Gorden of counsel), for res — Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 26, 2012, which, inter alia, denied defendant Starr Building Realty LLC’s (Starr) motion and defendant East Twin Enterprises, Inc. d/b/a/ Rhinebeck Grille’s (East Twin) cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the cross motion, and dismiss the complaint as against East Twin, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiff was patronizing defendant East Twin’s restaurant, located in a building owned by codefendant Starr, when she tripped and fell on a step leading into the restroom. East Twin had no control over the restroom in question, which was located on the second floor of the property and was not included in the premises leased to it (see McNally v. East Twins Enters., Inc., 19 AD3d 152 [1st Dept 2005]). Accordingly, summary judgment should have been granted dismissing the complaint as to East Twin.

MARIE ECKARDT, plf-res, v. STARR BUILDING REALTY LLC, Defendant-res-res

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