Opinion
2014-11-20
Wanda GARCIA, Plaintiff–Respondent, v. 1265 MORRISON LLC, Defendant–Appellant, Total Realty Associates, Inc., Defendant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for appellant. Evan J. Camhi, Lake Success, for respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for appellant. Evan J. Camhi, Lake Success, for respondent.
TOM, J.P., FRIEDMAN, ANDRIAS, FEINMAN, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered August 8, 2013, which, to the extent appealed from, denied defendant 1265 Morrison LLC's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff was injured after she allegedly slipped and fell on water as she walked down defendant's interiorstaircase, because defendant failed to submit evidence from a witness with knowledge as to the building's janitorial schedule in effect at the time of the accident and whether the schedule was followed on the day of the accident ( see Seleznyov v. New York City Tr. Auth., 113 A.D.3d 497, 498, 979 N.Y.S.2d 44 [1st Dept.2014]; Gautier v. 941 Intervale Realty LLC, 108 A.D.3d 481, 481–482, 970 N.Y.S.2d 191 [1st Dept. 2013] ).
Contrary to defendant's contention, plaintiff's testimony, that immediately after the accident she noticed the stairs were wet and that there was a mop and bucket under the stairwell, provides a nonspeculative basis for her version of the accident and sufficiently establishes a nexus between the hazardous condition and the circumstances of her fall ( see DiVetri v. ABM Janitorial Serv., Inc., 119 A.D.3d 486, 487, 990 N.Y.S.2d 496 [1st Dept.2014]; Yuk Ping Cheng Chan v. Young T. Lee & Son Realty Corp., 110 A.D.3d 637, 637–638, 973 N.Y.S.2d 642 [1st Dept.2013] ). In focusing on the persuasiveness of plaintiff's evidence, defendant is asking this Court to engage in issue-determination rather than issue-finding ( see Jacques v. Richal Enters., 300 A.D.2d 45, 45–46, 751 N.Y.S.2d 726 [1st Dept.2002] ).