| Winder v Executive Cleaning Servs., LLC |
| 2012 NY Slip Op 00512 [91 AD3d 865] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Ann Winder et al., Respondents, v Executive CleaningServices, LLC, Appellant, et al., Defendants. |
—[*1] Schwartz Goldstone & Campisi, LLP (Annette G. Hasapidis, South Salem, N.Y., of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendant Executive CleaningServices, LLC, appeals from so much of an order of the Supreme Court, Suffolk County(Costello, J.), dated October 20, 2010, as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellant's motion for summary judgment dismissing the complaint insofar as asserted against itis granted.
On November 14, 2005, the plaintiff Ann Winder (hereinafter the injured plaintiff) allegedlywas injured while walking into the cafeteria located in the office building where she worked.Only after the injured plaintiff fell to the floor and was sitting on a carpet runner near theentrance to the cafeteria, did she notice that part of the runner was folded up.
To impose liability upon a defendant for a plaintiff's injuries, there must be evidenceshowing the existence of a dangerous or defective condition, and that the defendant either createdthe condition or had actual or constructive notice of it and failed to remedy it within a reasonabletime (see Drago v DeLuccio, 79AD3d 966 [2010]; Penn v FleetBank, 12 AD3d 584 [2004]; Christopher v New York City Tr. Auth., 300 AD2d336 [2002]). Here, the defendant Executive Cleaning Services, LLC (hereinafter the appellant),which was responsible for cleaning the accident site, sustained its initial burden of establishingits prima facie entitlement to judgment as a matter of law by submitting the injured plaintiff'sdeposition testimony, which revealed that she did not know what caused her to trip as she enteredthe cafeteria of her office building (seeDrago v DeLuccio, 79 AD3d 966 [2010]; Penn v Fleet Bank, 12 AD3d 584 [2004]). The injured plaintiffadmitted at her deposition that she did not notice the runner at any time prior to the fall on theday of the occurrence, and that it was only after she fell that she observed the runner in a foldedcondition. While it is possible that this condition was present prior to the accident, it is just aslikely under these facts that the folded condition of the runner was caused when the injuredplaintiff tripped and was not a pre-existing condition. In the absence of [*2]proof that the mat was folded before the injured plaintiff's accident,a jury would be required to speculate as to the cause of her trip and fall (see Drago v DeLuccio, 79 AD3d966 [2010]; Penn v Fleet Bank,12 AD3d 584 [2004]). In opposition, the plaintiffs failed to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Courtshould have granted the appellant's motion for summary judgment dismissing the complaintinsofar as asserted against it. Dillon, J.P., Lott, Roman and Cohen, JJ., concur.