GAILLARD v. And A Third Party Action. (2001)

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 plaintiff's employer to maintain.   Contrary to appellants' contention, plaintiff's 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 plaintiff's carpeting expert (see, Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532), 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, 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 Coverings, Inc., 185 A.D.2d 149, 150, 586 N.Y.S.2d 787).