CICCARELLI v. COTIRA INC (2005)

 Plaintiffs commenced this action to recover damages for injuries allegedly sustained by Julie K. Ciccarelli (plaintiff) when she slipped and fell on a wood floor on defendant's premises.   We agree with defendant that Supreme Court erred in denying its motion for summary judgment seeking dismissal of the complaint.   Defendant established its entitlement to judgment as a matter of law by demonstrating that, immediately after plaintiff's accident, there was no defective or dangerous condition on the floor (see Zalko v. Sunrise Adult Health Care Ctr., 7 A.D.3d 616, 617, 776 N.Y.S.2d 594;  Lincoln v. Laro Serv. Sys., 1 A.D.3d 487, 767 N.Y.S.2d 279).   Although defendant submitted evidence establishing that third parties told plaintiffs that the floor was slippery, that does not establish a basis for liability inasmuch as, “in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence” (Mroz v. Ella Corp., 262 A.D.2d 465, 466, 692 N.Y.S.2d 156;  see Kruimer v. National Cleaning Contrs., 256 A.D.2d 1, 680 N.Y.S.2d 511;  Drillings v. Beth Israel Med. Ctr., 200 A.D.2d 381, 606 N.Y.S.2d 191).

 Once defendant established its entitlement to judgment as a matter of law, the burden then shifted to plaintiffs to raise a triable issue of fact to defeat the motion (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Plaintiffs failed to do so.   As properly noted by the court, the unsworn statement of defendant's former employee submitted by plaintiffs was not evidence in admissible form and thus was insufficient to defeat the motion (see Barilla v. Meredith Corp., 224 A.D.2d 992, 637 N.Y.S.2d 831;  see generally Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76).   Although plaintiffs submitted an affidavit from an expert architect, “[t]he expert's opinion should have been disregarded as conclusory inasmuch as it was based upon observations of the floor made over [five] years after the accident” (Kruimer, 256 A.D.2d at 1, 680 N.Y.S.2d 511;  see Santo v. Astor Ct. Owners Corp., 248 A.D.2d 267, 668 N.Y.S.2d 890).   In any event, the expert's affidavit “was completely speculative and conclusory, failed to set forth foundational facts, assumed facts not supported by the evidence, and failed to recite the manner in which the [architect] came to his conclusions” (Ioffe v. Hampshire House Apt. Corp., 21 A.D.3d 930, 931, 800 N.Y.S.2d 757;  see e.g. Krash v. Bishop-Sanzari, J.V., 309 A.D.2d 788, 789, 765 N.Y.S.2d 387;  Fields v. S & W Realty Assoc., 301 A.D.2d 625, 754 N.Y.S.2d 348).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: