Opinion
2013-04-30
Violet GEFFS, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents. The City of New York, et al., Third–Party Plaintiffs, v. Temco Service Industries, Inc., Third–Party Defendant–Intervenor.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Kathy H. Chang of counsel), for respondents.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel), for appellants.Michael A. Cardozo, Corporation Counsel, New York (Kathy H. Chang of counsel), for respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for intervenor.
, J.P., MOSKOWITZ, RENWICK, FREEDMAN, CLARK, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 23, 2011, which, to the extent appealed from as limited by the briefs, granted defendant New York City Department of Education's (DOE) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.
The DOE failed to meet its prima facie burden of showing that it neither created nor had actual or constructive notice of the wet condition in the school cafeteria upon which plaintiff slipped and fell ( see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ). Defendants' own submissions show that questions of fact exist as to whether they had notice of the condition. One of the custodial workers at the subject school testified that another custodian called him and told him that caution signs were placed “out,” but because he was not present when the accident occurred, he was unable to testify about where or when the warning sign or signs were placed. Because the presence of at least one warning sign is sufficient evidence to raise an issue of fact as to whether a defendant had actual notice of a hazardous condition, the DOE's motion should have been denied ( see Dabbagh v. Newmark Knight Frank Global Mgt. Servs., LLC, 99 A.D.3d 448, 450, 952 N.Y.S.2d 118 [1st Dept. 2012];Rosado v. Phipps Houses Servs., Inc., 93 A.D.3d 597, 597, 940 N.Y.S.2d 866 [1st Dept. 2012] ).
Further, even if the DOE could delegate its duty to maintain the school premises in a reasonably safe condition ( see Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 449 N.E.2d 725 [1983];Jonathan A. v. Board of Educ. of City of N.Y., 8 A.D.3d 80, 82, 779 N.Y.S.2d 3 [1st Dept. 2004] ), the DOE did not establish, as was its burden, that the contract between it and third-party defendant Temco Service Industries constituted an exclusive maintenance contract completely displacing the DOE's duty ( see Church v. Callanan Indus., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ). If any written agreement exists, none was proffered, and the testimony about the agreement indicates that the DOE retained at least some control over cleaning and maintenance ( see Gronski v. County of Monroe, 18 N.Y.3d 374, 379–382, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011] ).