Wanda Garcia, Plaintiff–Respondent, v. 1265 LLC

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

Wanda Garcia, Plaintiff–Respondent, v. 1265 Morrison LLC, Defendant–Appellant, Total Realty Associates, Inc., Defendant.

1354 8

Decided: November 20, 2014

Tom, J.P., Friedman, Andrias, Feinman, Kapnick, JJ. Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for appellant. Evan J. Camhi, Lake Success, for respondent.

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Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered August 8, 2013, which, to the extent appealed from, denied defendant 1265 Morrison LLC's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured after she allegedly slipped and fell on water as she walked down defendant's interior staircase, because defendant failed to submit evidence from a witness with knowledge as to the building's janitorial schedule in effect at the time of the accident and whether the schedule was followed on the day of the accident (see Seleznyov v. New York City Tr. Auth., 113 AD3d 497, 498 [1st Dept 2014];  Gautier v. 941 Intervale Realty LLC, 108 AD3d 481, 481–482 [1st Dept 2013] ).

Contrary to defendant's contention, plaintiff's testimony, that immediately after the accident she noticed the stairs were wet and that there was a mop and bucket under the stairwell, provides a nonspeculative basis for her version of the accident and sufficiently establishes a nexus between the hazardous condition and the circumstances of her fall (see DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept 2014];  Yuk Ping Cheng Chan v Young T. Lee & Son Realty Corp., 110 AD3d 637, 637–638 [1st Dept 2013] ).   In focusing on the persuasiveness of plaintiff's evidence, defendant is asking this Court to engage in issue-determination rather than issue-finding (see Jacques v. Richal Enters., 300 A.D.2d 45, 45–46 [1st Dept 2002] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK