CRUZ v. [And A Third-Party Action]. (2002)

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about April 5, 2001, which denied the motion of defendant/third-party defendant Marte Construction, Ltd. (Marte) for summary judgment, unanimously affirmed, without costs.

Plaintiff allegedly slipped on an oily, yellowish substance on the roof landing, about a foot away from the door leading to a roof that was undergoing renovation by Marte.   There was evidence that Marte used “Superfoam,” an oily, yellowish viscous substance and motor oil, also yellowish and viscous, in its construction project and that workers used the steps from the top floor landing to access the roof and frequently ate their lunch on the stairway or hallway below.   Although Marte's crew last worked 18 to 19 hours prior to plaintiff's accident and Marte claims that the steps were cleaned at the end of each work day, there is no evidence that anyone else used the stairs leading to the roof after the workers left.   Viewing this evidence as we must, in the light most favorable to the party opposing summary judgment, particularly since Marte used oily substances in the construction project, there is circumstantial evidence tending to suggest that it created the dangerous condition, raising an issue of fact that precludes summary judgment (see, Morgan v. New York Convention Ctr., 231 A.D.2d 403, 647 N.Y.S.2d 3;  Henderson v. Hickory Pit Rest., 221 A.D.2d 161, 162, 633 N.Y.S.2d 31;  see also, Considine v. Cinganelli, 280 A.D.2d 635, 721 N.Y.S.2d 373).