Wagner v. Acme American Repairs, Inc.

129 A.D.3d 594, 10 N.Y.S.3d 440

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 2015
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 18, 2014, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a dishwasher at a restaurant, slipped on a wet floor of the restaurant’s dishwashing room and alleges that his accident was caused by defendant contractor’s failure to properly maintain the dishwasher, causing it to leak.

Issues of fact exist as to whether the service contract between defendant and plaintiff’s employer entirely displaced the employer’s duty to maintain the kitchen equipment in a safe condition, since the contract prohibited anyone other than defendant’s employees from working on the equipment, including the dishwasher (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]).

Concur — Mazzarelli, J.P., Sweeny, Acosta, Clark and Kapnick, JJ.