Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant. Frekhtman & Associates, Brooklyn (Eileen Kaplan of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Kahn, Kern, JJ.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.
Frekhtman & Associates, Brooklyn (Eileen Kaplan of counsel), for respondent.
Order, Supreme Court, Bronx County (Llinèt M. Rosado, J.), entered December 15, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to establish prima facie that it did not have constructive notice of the condition that caused plaintiff's trip and fall accident. Its caretaker testified inconsistently as to whether, and to what extent, she cleaned the subject building in accordance with the applicable janitorial schedule, and an affidavit from her supervisor similarly contradicts her testimony. Because defendant failed to present competent evidence that the janitorial schedule was followed on the day of the accident, the motion court correctly denied the motion regardless of the sufficiency of plaintiff's papers in opposition (see Williams v New York City Hous. Auth., 99 AD3d 613 [1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2018