| Walters v Collins Bldg. Servs., Inc. |
| 2008 NY Slip Op 10215 [57 AD3d 446] |
| December 30, 2008 |
| Appellate Division, First Department |
| Lori Beth Walters, Respondent, v Collins BuildingServices, Inc., Defendant, and American Building Maintenance Co., et al., Appellants. AmericanBuilding Maintenance Co., Third-Party Plaintiff-Appellant, v Trammell Crow Services, Inc.,Third-Party Defendant-Appellant. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Eileen M. Baumgartner of counsel),for American Express Company, appellant. White, Quinlan & Staley, LLP, Garden City (Eileen Farrell of counsel), for Trammell CrowServices, Inc., appellant. Sacco & Fillas, LLP, Whitestone (Andrew Wiese of counsel), for respondent.
Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered August 6, 2007and September 11, 2007, which denied the respective motions of defendants American BuildingMaintenance Co. (ABM) and American Express Company and third-party defendant TrammellCrow Services, Inc. for summary judgment dismissing the complaint and the third-partycomplaint and all cross claims, unanimously reversed, on the law, without costs, the motionsgranted and the complaint, the third-party complaint and all cross claims dismissed. The Clerk isdirected to enter judgment accordingly.
Defendants established prima facie that they neither created nor had actual or constructivenotice of the wet floor of the women's restroom on which plaintiff allegedly slipped and fell (see Smith v Costco Wholesale Corp.,50 AD3d 499, 500-501 [2008]). American Express employees' [*2]testimony and Trammell's activity reports demonstrated thatAmerican Express was not responsible for cleaning the restrooms, that its agents, ABM andTrammel, routinely attended to maintenance matters of which they were made aware, and thatnone of these parties had knowledge of a plumbing problem in that restroom on the day ofplaintiff's accident before the accident happened.
Plaintiff failed to raise a triable issue of fact through her testimony that she had seen the sametoilet overflowing earlier in the day, that after the accident she asked the receptionist to informmaintenance personnel of the problem, which the receptionist agreed to do, and that before theaccident she had heard other employees in the building complaining about that particular toilet(see Guttierez v Lenox HillNeighborhood House, 4 AD3d 138 [2004]). Trammell's activity reports reflect theoccasional toilet clogging or flooding incident and a prompt response thereto. They do notsupport plaintiff's contention that there was a recurring problem such as would constituteconstructive notice of a hazardous condition (see McFadden v 530 Fifth Ave. RPS III Assoc., LP, 28 AD3d 202[2006]). Nor is there any evidence that the receptionist ever conveyed plaintiff's complaint toanyone. Concur—Tom, J.P., Friedman, Gonzalez, McGuire and Acosta, JJ.