DESENA v. Ultimate Services, Inc., et al., appellants.

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

Angelo DESENA, et al., respondents, v. FEDERATED DEPARTMENT STORES, INC., et al., defendants, Ultimate Services, Inc., et al., appellants.

Decided: August 25, 2009

ROBERT A. SPOLZINO, J.P., PETER B. SKELOS, MARK C. DILLON, and JOSEPH COVELLO, JJ. Molod Spitz & DeSantis, P.C., New York, N.Y. (Salvatore J. DeSantis and Marcy Sonneborn of counsel), for appellants. Simon Lesser PC, New York, N.Y. (Leonard F. Lesser of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Ultimate Services, Inc., and USI Building Services Nationwide appeal from an order of the Supreme Court, Kings County (Martin, J.), dated November 17, 2008, which denied their renewed motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The injured plaintiff, Angelo Desena, allegedly sustained injuries when he tripped and fell over a piece of wood in an emergency staircase at his employer's premises.   As a result, the injured plaintiff and his wife, suing derivatively, commenced this action against, among others, the defendants Ultimate Services, Inc., and USI Building Services Nationwide (hereinafter together the appellants), which provided cleaning services in those premises.   The appellants made a renewed motion for summary judgment dismissing the complaint insofar as asserted against them, contending that they had no duty to maintain the emergency staircase and that they did not create the alleged hazardous condition or have actual or constructive notice of it.   The Supreme Court denied the motion, and we affirm.

The appellants satisfied their burden of establishing, prima facie, their entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In opposition, the plaintiffs submitted sufficient proof to establish that triable issues of fact exist as to whether the appellants had a duty to maintain the emergency staircase and whether they had constructive notice of the alleged hazardous condition.   Accordingly, the Supreme Court properly denied the appellants' renewed motion for summary judgment dismissing the complaint insofar as asserted against them.

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