Plaintiff appeals from an order of the Civil Court,

New York County (Geoffrey D. Wright, J.), entered December
30, 2004, which granted defendants' motion for summary
judgment dismissing the complaint, and upon a search
of the record, dismissed the third-party complaint.
PER CURIAM:

Order (Geoffrey D. Wright, J.) entered December 30,
2004, reversed, with $10 costs, and complaint and third- [*2]
party complaint reinstated.

Plaintiff was employed by third-party defendant as a
bathroom porter. He was allegedly injured when he slipped and fell on a discarded computer mouse pad while in the
process of disposing of bathroom trash in a garbage bin near the freight landing. Defendants, building lessee and
managing agent, moved for summary judgment arguing, inter
alia, that the mouse pad was an open and obvious condition,
readily observable to anyone using his or her senses and
therefore was not a condition that defendants had a duty to
remedy. The motion court accepted the argument and dismissed the complaint against defendant as well as the third-party complaint against plaintiff's employer.

We reverse. Although the computer mouse pad on which
plaintiff tripped may have been open and obvious, that
circumstance only eliminated defendants' duty to warn of
the hazardous condition; it did not negate their broader
duty to maintain the workplace in a reasonably safe
condition. Accordingly, plaintiff's failure to observe the
mouse pad goes only to the question of comparative
negligence (see DeJesus v. F.J. Sciame Construction Co.,
Inc., 20 AD3d 354 [2005]; Garrido v. City of New York, 9 AD3d 267 [2004]). An issue of fact remains as to whether defendant lessee, who engaged in a "daily" practice of disposing of used computer parts "all over the floor," and defendant managing agent, who received complaints of the same, were negligent in creating or failing to remedy such a condition, particularly in view of the deposition testimony that the cleaning staff was unable to remove the computer parts without prior authorization from defendants. With respect to defendants' indemnification claim against plaintiff's employer, issues of fact remain as to whether defendants were actively negligent and contributed to plaintiff's accident, precluding summary judgment under the specific terms of the contract (see Fraioli v. St. Joseph's Seminary of City of New York, 1 AD3d 280 [2003]).

This constitutes the decision and order of the court.
Decision Date: November 18, 2005