Opinion
570472/03.
Decided May 27, 2004.
Defendants Arcade Cleaning Services Company and Sandhurst Associates, Ltd. appeal from an order of the Civil Court, New York County, entered October 16, 2002 (Eileen N. Nadelson, J.) which, inter alia, denied their cross motions for summary judgment dismissing the complaint as against them.
Order entered October 16, 2002 (Eileen N. Nadelson, J.), insofar as appealed from, reversed, with $10 costs, cross motions granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant-appellants dismissing the complaint as against them.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
This negligence action arises from the first-named plaintiff's alleged slip and fall on an "uneven square" of hallway carpet leading to an elevator on the eighth floor of office premises located at 55 Water Street in Manhattan. The motion court correctly concluded that neither of the defendants remaining in the action conclusively demonstrated the absence of a duty of care, inasmuch as the defendant management firm failed to raise or address the issue in its moving papers below and the defendant contractor failed, without explanation, to submit a copy of the contract whose terms allegedly exculpate it from liability ( see Rodriguez v. Savoy Boro Park Assocs. Ltd. Partnership, 304 AD2d 738, 739).
Summary judgment dismissal was warranted nonetheless, since the record contains insufficient evidence to establish that defendants had actual or constructive notice of any actionable defect in the carpet. There was no actual notice because no one had complained of a carpet defect prior to the incident. With respect to constructive notice, the injured plaintiff, while advancing no claim that the carpet was worn, loose or curled, attributed her fall to the "uneven" condition of the carpet, a condition which, it is alleged, had existed for approximately six months prior to the accident. Significantly absent from plaintiffs' submission below was any description of the nature or measurements of the claimed unevenness in the carpet or any explanation as to why the "dangerous" carpet condition had caused no slipping problems in the busy office premises on any prior occasions. On this record, the injured plaintiff's bare conclusory allegation that the carpet was uneven was insufficient to raise a triable issue of fact and to defeat defendants' motion for summary judgment ( see Campanella v. Marstan Pizza Corp., 280 AD2d 418; cf. Morales v. LaSalle Partners Ltd., 291 AD2d 328).
This constitutes the decision and order of the court.