I am proud of the fact that the Appellate Division, First Department agreed with our arguments in the case of Fragale v. The City of New York, 2011 NY Slip Op 07138 (1st Dept. 2011).
The case involves a Sanitation supervisor who slipped and fell on a oil/grease patch at a City owned garage. The garage supervisor’s report indicated that there was no oil/grease in the area of the accident. However, there was conflicting testimony from a worker at the garage indicating that the area of the accident was routinely covered in grease/oil because it was the staging area for attaching snow plows to the garbage trucks. The testimony also showed that Mr. Fragale was found in a patch of oil/grease and that the worker was told to spread “Speedy Dry” to soak up the oil after the accident. The Court’s complete decision is annexed below as I think it is helpful on many cases involving recurring conditions.
[*1]Pietro Fragale, et al., Plaintiffs-Appellants,
v
The City of New York, Defendant-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 AD3d 313, 314 [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 AD2d 688 [1996], affd 88 NY2d 955 [1996]). The evidence also presents a triable issue as to whether defendant created the alleged oil condition (see Zisa, 39 AD3d at 314). 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.
THIS CONSTITUTES THE DECISION AND ORDER 10/11/2011
