SANTOS v. TEMCO SERVICE INDUSTRIES INC

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Supreme Court, Appellate Division, First Department, New York.

Wendy SANTOS, Plaintiff-Respondent, v. TEMCO SERVICE INDUSTRIES, INC., Defendant-Appellant.

Decided: June 18, 2002

TOM, J.P., BUCKLEY, ELLERIN, WALLACH, and GONZALEZ, JJ. Brian J. Isaac, for Plaintiff-Respondent. David Henry Sculnick, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about June 6, 2001, which, upon the grant of renewal and reargument, adhered to the court's prior order denying defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff's deposition testimony to the effect that she discovered a waxy substance on her clothes after she slipped and fell, along with the affidavit of plaintiff's witness, Sonia Morales, stating that she saw plaintiff fall on an area of flooring that was being waxed and had been left, prior to being buffed by defendant's employee, with a residue of waxy material and without warnings or barricades, was sufficient to raise triable issues as to whether defendant was responsible for creating the hazard to which plaintiff attributes her harm (see, Pangakos v. Greek Archdiocese of N. & S. Am., 213 A.D.2d 336, 624 N.Y.S.2d 37).   While defendant questions Ms. Morales' credibility, issues as to witness credibility are not appropriately resolved on a motion for summary judgment (see, Welch v. Riverbay Corp., 273 A.D.2d 66, 709 N.Y.S.2d 58).

We have considered defendant's remaining contentions and find them unavailing.