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

Pietro FRAGALE, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant–Respondent.

Decided: October 11, 2011

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ABDUS–SALAAM, JJ. Arnold E. DiJoseph, New York, for appellants. Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered May 11, 2010, which, in this personal injury action arising from a slip and fall in a garage owned and managed by defendant, denied as moot plaintiff's motion for a trial preference and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the cross motion denied, and the matter remanded for proceedings consistent with this decision.

Supreme Court erred in finding that there were no issues of fact as to constructive notice of the alleged oil condition on the garage floor where plaintiff fell.   The testimony and statements of defendant's employees raised an issue of fact as to whether there was an ongoing and recurring dangerous oil condition in the area of the accident that defendant routinely left unaddressed (see Zisa v. City of New York, 39 A.D.3d 313, 314, 834 N.Y.S.2d 127 [2007] ).   Indeed, a supervisor stated that the garage floor was oily for “weeks and months,” and a superintendent testified that he performed only weekly inspections of the premises (compare Mercer v. City of New York, 223 A.D.2d 688, 637 N.Y.S.2d 456 [1996], affd. 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443 [1996] ).   The evidence also presents a triable issue as to whether defendant created the alleged oil condition (see Zisa, 39 A.D.3d at 314, 834 N.Y.S.2d 127).   One of defendant's supervisors testified that defendant routinely performed maintenance work on vehicles in the area where plaintiff fell, causing oil to spill on the floor.   Any conflict between the witnesses' statements and their EBT testimony presents credibility questions not suitable for resolution on the defendant's motion for summary judgment.

We decline to decide whether plaintiff should have been granted a trial preference.   Supreme Court denied plaintiff's motion as moot, and thus never addressed the merits of the issue.   Accordingly, we remand for the court to consider plaintiff's application for a trial preference.