Gaillard v. Olympia & York Rand Co.

289 A.D.2d 181, 735 N.Y.S.2d 514, 2001 N.Y. App. Div. LEXIS 12837

Opinion

Order, Supreme Court, Bronx County (George Friedman, J.), entered July 27, 2001, which, inter alia, denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff allegedly was injured when she slipped and fell on carpeting that defendants-appellants’ cleaning services had contracted with plaintiffs employer to maintain. Contrary to appellants’ contention, plaintiffs deposition testimony was sufficient to raise a triable issue as to whether the area of carpet upon which she claims to have slipped, which she described as shiny, somewhat matted, dented and stained, was hazardous. In addition, the court properly considered testimony of plaintiffs carpeting expert (see, Matott v Ward, 48 NY2d 455, 459), that, in his opinion, it was appellants’ attempts at removing the carpet stain that caused the subject area of carpet to become damaged and, concomitantly, hazardous. This testimony was sufficient to raise a triable issue as to whether appellants created the alleged defect. Accordingly, appellants’ contention that summary judgment dismissing the complaint against them should have been awarded because they had neither actual nor constructive notice of the alleged hazard is without merit (see, Halloran v Spina Floor Covering, 185 AD2d 149, 150). Concur — Rosenberger, J. P., Ellerin, Wallach, Rubin and Marlow, JJ.