Brown v. Simone Development Co.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered September 16, 2010, which, to the extent appealed from, in this action for personal injuries sustained when plaintiff slipped on water and fell in the lobby of a building owned by defendant Simone Development Company, L.L.C., denied defendant ABM Industries, Inc.’s (ABM) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs. Dismissal of the complaint as against ABM, the maintenance company charged with providing cleaning services for the subject building, was not warranted. Although ABM presented evidence about its general cleaning practices and the schedule of its employee indicating that he did not mop the lobby until three hours after the accident, plaintiff and her coworker testified that plaintiff slipped in water, that no warning signs were 545 set out, that it was not raining and no leaks came from the ceiling, and that an ABM employee was standing nearby with a mop and bucket. Plaintiffs coworker further testified that he had previously seen an ABM employee mop the lobby at around the time of night the accident occurred as opposed to when mopping should have be done pursuant to ABM’s general practices. Such evidence presents triable issues as to whether ABM created the condition upon which plaintiff slipped (see Healy v ARP Cable, 299 AD2d 152, 154-155 [2002]). Regarding ABM’s argument that it did not owe plaintiff a duty of care, the complaint cannot be dismissed on that ground in light of the evidence that ABM launched a force or instrument of harm by negligently mopping or leaving a puddle of water right next to the elevators in the lobby. Furthermore, ABM’s contract displaced the property owner’s duty to maintain the premises safely (see Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579 [1994]). Concur—Andrias, J.E, Saxe, Moskowitz, Richter and Manzanet-Daniels, JJ.