ORDERED that the defendants' motion for summary judgment is considered under CPLR 3212, and is hereby denied; and it is further

ORDERED that the movant shall serve a copy of this Order upon all parties, or their attorney(s) if represented by counsel, pursuant to CPLR 2103(b)(1), (2) or (3) within twenty (20) days of the date herein and shall thereafter file the affidavit(s) of service with the Clerk of the Court.

In this action, the plaintiffs allege that on March 6, 2003, the then sixth-grade infant plaintiff, Melissa Carey, was injured when she slipped and fell on a negligently maintained wet floor while she was entering the Babylon Memorial Grade School. In their motion for summary judgment the defendants essentially argue that they had no prior actual or constructive notice of the alleged defective condition, and that the plaintiffs' expert disclosure fails to raise a triable issue of fact regarding such alleged condition. The defendants, therefore, claim entitlement to summary judgment and dismissal of the plaintiffs' complaint as a matter of law.

In relevant part, CPLR 3212(b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." It is well settled that the remedy of summary judgment is a drastic one and there is considerable reluctance to grant summary judgment in negligence actions (Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact or where an issue of fact is even arguable since it deprives a party of his day in court (Id; see also, Henderson v City of New York, 178 AD2d 129, 576 NYS2d 562 [1st Dept 1991]).

Issue finding rather than issue determination is the key to the procedure (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). Since summary judgment is the procedural equivalent of a trial, if there is any doubt as to the existence of a triable issue, or where a material issue of fact is even "arguable," summary judgment must be denied (Phillips v Kantor & Co., 31 NY2d 307, 338 NYS2d 882 [1982]); Rotuba v Cepcos, 46 NY2d 223, 413 NYS2d 141 [1978]; Freeman v Easy Glider Roller Rink Inc., 114 AD2d 436, 494 NYS2d 351 [2d Dept 1985]). Furthermore, the proof of the party opposing the motion must be accepted as true and considered in a light most favorable to the opposing party (Dowsey v Megerian, 121 AD2d 497, 503 NYS2d 591 [2d Dept 1986]; Museums at Stony Brook v The Village of Patchogue Fire Department, 146 AD2d 572, 536 NYS2d 177 [2d Dept 1989]; Matter of Benincasa v Garrubbo, 141 AD2d 636, 529 NYS2d 797 [2d Dept 1988]).

Produced for deposition on behalf of the defendants were head custodian, Carlos Ponton, and his assistant, William DesJardin. Although Mr. Ponton was not working on the date of the accident, his duties were to be carried out by Mr. DesJardin in Mr. Ponton's absence. As head custodian, Mr. [*2]Ponton testified that he knew that during days of inclement weather the floor in the foyer area where the accident occurred would become wet because of the students walking into the building from outside. As a result, the area would need to be mopped. Mr. Ponton also testified that on days the weather was inclement and rainy, he was responsible for placing "wet floor" signs at every school entrance. Similarly, Mr. DesJardin, whose responsibilities included safety of the children, testified that during rainy or snowy days, he would be required to place wet floor makers in the wet areas. Mr. DesJardin further testified that when it rains, or even if it is just wet outside, he places wet floor signs in the entrance areas so that when the children step onto the floor they know it may be wet.

It is undisputed that there was snow and rain on the ground outside the area on the day of the accident. According to the testimony of the infant plaintiff, however, there were no "wet floor" signs in the area at the time her accident occurred. Based on this evidence, and the fact that Mr. Ponton was not at work on the date of the accident, questions of fact exist for jury determination as to whether or not the defendants' staff followed its own safety procedures by placing the wet floor signs in or about the entrance area on the date of this accident.

Questions of fact also exist concerning whether or not the defendants' policies and procedures were reasonable under the facts known to the defendants at the time of the plaintiff's accident. In this regard, Mr. DesJardin testified he was aware that the children congregate in the vestibule area where the accident occurred, and that they come through the subject entrance very quickly, walking fast and pushing to get into the building with their heavy packs on. He also testified that when the children enter the building, their first step is onto the tile floor where water is known to accumulate from the children's feet. Nevertheless, Mr. Ponton and Mr. DesJardin both testified that a mat is never placed between the doors in that vestibule area, nor is one ever placed immediately outside the doors. Furthermore, although both Mr. Ponton and Mr. DesJardin were aware of the accumulation of water, neither would mop the area until after school started, when the children were already in their classrooms. These issues raise questions of fact for determination by a jury regarding the reasonableness of the defendants' placement of mats (or lack of certain mats), regarding allowing children to congregate in the subject area, and regarding their mopping policies and procedures.

Summary judgment in favor of a defendant is not appropriate where there is proof that the area outside is wet and that the defendants were aware that the area inside might be wet (see, Kormusis v Jeffrey Gardens Apartment Corp., 31 AD3d 392, 817 NYS2d 655 [2d Dept 2006]). This is particularly true where, as here, there is proof that the defendants were aware that water was being tracked into the building and that the floor in area of the accident might be wet, as shown by the placement of floor mats in other areas of the building (id). Accordingly, based on the foregoing, summary judgment for the defendants is denied.

This constitutes the Decision and Order of the Court. [*3]

Dated:

PETER H. MAYER, J.S.C.