Opinion
2013-11-19
Deborah CHESTNUT, Plaintiff–Respondent, v. ARAMARK FACILITY SERVICES, LLC, Defendant, Village Care of New York, Inc., Defendant–Appellant.
Kaufman Borgeest & Ryan LLP, New York (Dennis J. Dozis of counsel), for appellant. Miller & Campson, New York (Thomas K. Miller of counsel), for respondent.
Kaufman Borgeest & Ryan LLP, New York (Dennis J. Dozis of counsel), for appellant. Miller & Campson, New York (Thomas K. Miller of counsel), for respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 3, 2012, which, to the extent appealed from as limited by the briefs, denied defendant Village Care of New York, Inc.'s (VCNY) motion for summary judgment dismissing the complaint and cross claims as against it, unanimously affirmed, without costs.
Triable issues exist as to whether VCNY, the corporate parent to the landowner (a nonparty to the action), assumed a measure of control over the cleaning of the premises, and therefore a duty to maintain the same, by, inter alia, providing staffing for the housecleaning ( see generally Aversano v. City of New York, 265 A.D.2d 437, 696 N.Y.S.2d 233 [2d Dept.1999]; cf. Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252, 794 N.Y.S.2d 320 [1st Dept.2005] ). Triable issues were also raised whether alleged inadequate weekend staffing of the maintenance crew constituted a proximate cause of plaintiff's slip and fall on a slippery substance. VCNY, as movant for summary judgment, did not establish prima facie entitlement to summary judgment dismissing the complaint, as it failed to set forth evidence indicating actual cleaning and/or inspections at the subject premises, as per contract requirements, in the days leading up to plaintiff's slip and fall ( see e.g. Nugent v. 1235 Concourse Tenants Corp., 83 A.D.3d 532, 920 N.Y.S.2d 660 [1st Dept.2011]; Klerman v. Fine Fare Supermarket, 96 A.D.3d 907, 946 N.Y.S.2d 506 [2d Dept.2012]; Maldonado v. City of New York, 93 A.D.3d 407, 939 N.Y.S.2d 60 [1st Dept.2012] ).
We have considered VCNY's remaining arguments and find them unavailing. TOM, J.P., SWEENY, SAXE, FREEDMAN, CLARK, JJ., concur.