Defendant appeals from an order of the Civil Court, New York County, entered February 4, 2004 (Saliann Scarpulla, J.) which, inter alia, denied its motion for summary judgment dismissing the complaint, and from an order of the same court and Judge entered October 6, 2004, which, upon renewal, adhered to its prior determination.

PER CURIAM:

Orders entered February 4, 2004, and October 6, 2004 (Saliann Scarpulla, J.) affirmed, with $10 costs.

On November 13, 1992, shortly before 6 p.m., plaintiff municipal employee slipped and fell on a wet lobby floor at 51 Chambers Street in Manhattan, where cleaning and
maintenance was contracted to defendant janitorial service. There were no warning signs that the floor had just been cleaned. This action was commenced in 1994. Defendant went out of business in 1996, at which time all cleaning, maintenance and employee records were destroyed. Seven years later, defendant moved for summary judgment.

Defendant's owner testified that at the time of the accident, it had one employee covering this building who would spot-clean the floor each morning at about 10:30 a.m.; none of its employees worked in this building as late as 5 p.m. Due to time constraints, mopping would be reserved for one Saturday per month, when the lobby floor was stripped and waxed. Plaintiff countered that she normally left work at about 6 p.m., and often observed a cleaning service mopping the lobby floor at that time of day. Plaintiff questioned the improbability that a well-trafficked lobby floor as this would be mopped only once per month. Her sister, who responded to the accident scene, attested that she recognized defendant as the company that cleaned her own workplace in a nearby building, where she would observe the floor being mopped several times per week, always at the end
of the work day.

Upon renewal, defendant presented testimony from an employee of third-party defendant Department of Transportation to the effect that its own custodians would mop the floors at 51 Chambers Street in the morning, and clean up any spills during the day. Also introduced was a workers' compensation report that indicated plaintiff had fallen "due to an [*2]incline of the floor," without any mention of wetness.

Even though no witness observed this defendant mopping the floor prior to this accident, circumstantial evidence may be used in response to a motion for summary judgment to substantiate the claim, sufficient to create an issue of fact as to whether defendant had created the condition (see Healy v ARP Cable, 299 AD2d 152, 154-155 [2002]). Plaintiff's burden at trial will be to render other possible causes less likely, reasonable or logical than the inference of defendant's negligence (see Gayle v City of New York, 92 NY2d 936 [1998]; Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743 [1986]). To the extent that the workers' compensation report may contradict plaintiff's
version of the cause of the accident, this is an issue of credibility for the trier of facts.

This constitutes the decision and order of the Court.
Decision Date: October 18, 2005