| Brown v Simone Dev. Co., L.L.C. |
| 2011 NY Slip Op 03132 [83 AD3d 544] |
| April 19, 2011 |
| Appellate Division, First Department |
| Sentina Brown, Respondent, v Simone DevelopmentCompany, L.L.C., Defendant, and ABM Industries, Inc., Appellant. |
—[*1] Silverman Bikkal & Sandberg LLP, White Plains (Alicia K. Sandberg of counsel), forrespondent.
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 plaintiffslipped on water and fell in the lobby of a building owned by defendant Simone DevelopmentCompany, L.L.C., denied defendant ABM Industries, Inc.'s (ABM) motion for summaryjudgment 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 withproviding cleaning services for the subject building, was not warranted. Although ABMpresented evidence about its general cleaning practices and the schedule of its employeeindicating that he did not mop the lobby until three hours after the accident, plaintiff and hercoworker testified that plaintiff slipped in water, that no warning signs were set out, that it wasnot raining and no leaks came from the ceiling, and that an ABM employee was standing nearbywith a mop and bucket. Plaintiff's coworker further testified that he had previously seen an ABMemployee mop the lobby at around the time of night the accident occurred as opposed to whenmopping should have be done pursuant to ABM's general practices. Such evidence presentstriable issues as to whether ABM created the condition upon which plaintiff slipped (seeHealy 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 cannotbe dismissed on that ground in light of the evidence that ABM launched a force or instrument ofharm by negligently mopping or leaving a puddle of water right next to the [*2]elevators in the lobby. Furthermore, ABM's contract displaced theproperty owner's duty to maintain the premises safely (see Palka v Servicemaster Mgt. Servs.Corp., 83 NY2d 579 [1994]). Concur—Andrias, J.P., Saxe, Moskowitz, Richter andManzanet-Daniels, JJ.