Wagner v Acme Am. Repairs, Inc.

Wagner v Acme Am. Repairs, Inc. 2015 NY Slip Op 05414 Decided on June 23, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 23, 2015
Mazzarelli, J.P., Sweeny, Acosta, Clark, Kapnick, JJ.
15509 401491/11

[*1] Roberto Wagner, Plaintiff-Respondent,

v

Acme American Repairs, Inc., Defendant-Appellant.

Marshall Dennehey Warner Colemen & Goggin, P.C., New York (John K. McElligott of counsel), for appellant.

Andrew L. Weitz & Associates, P.C., Mineola (James M. Lane of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 18, 2014, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a dishwasher at a restaurant, slipped on a wet floor of the restaurant's dishwashing room and alleges that his accident was caused by defendant contractor's failure to properly maintain the dishwasher, causing it to leak.

Issues of fact exist as to whether the service contract between defendant and plaintiff's employer entirely displaced the employer's duty to maintain the kitchen equipment in a safe condition, since the contract prohibited anyone other than defendant's employees from working on the equipment, including the dishwasher (see Palka v Servicemaster Mgt. Servs. Corp. , 83 NY2d 579, 589 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2015

CLERK