SEGRETTI v. Broadway West Street Associates, L.P., Defendant. (1998)

Order, Supreme Court, New York County (Emily Goodman, J.), entered April 24, 1998, which denied defendants' motion and cross-motion for summary judgment, unanimously reversed, on the law, without costs, the motion and cross-motion granted, and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

Plaintiff Joseph Segretti was injured on the morning of June 6, 1995 in the lobby of an office building located at 71 Broadway in the City and County of New York. After purchasing a bagel and coffee, plaintiff slipped and fell while crossing the lobby, sustaining injury to his hand.   As he attempted to rise, plaintiff again began to slip, at which time he noticed an oily substance on the bottom of his shoes.   However, plaintiff did not, either prior to or at the time of his fall, notice anything on the lobby floor itself.

Plaintiff commenced this action against defendants Champ Gourmet Croissant, Inc., the lessee that owns the coffee shop, Shorenstein Company, East, L.P., the manager of the shop, and Pritchard Industries, Inc., the contractor responsible for cleaning the building.   Upon completion of discovery, Shorenstein moved for summary judgment dismissing the complaint.   It is Shorenstein's position that plaintiff does not know the identity of the substance, how long it was on the floor or how it came to be there.   Thus, Shorenstein contends, plaintiff has failed to make out a prima facie case of negligence.   Defendants Pritchard and Champ cross-moved on similar grounds, arguing that they had neither actual nor constructive notice of the allegedly hazardous condition.

Plaintiff asserts that it is defendants' burden to establish the lack of actual or constructive notice.   In any event, he maintains that notice of the condition, which he claims was a recurrent one, constitutes a triable issue of fact.   Finally, plaintiff notes that he is not obliged to identify the specific substance that caused his injury.

 The mere existence of a foreign substance, without more, is insufficient to support a claim of negligence (see, Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249-250, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612).   To establish a prima facie case, the plaintiff must show that the defendant either created a dangerous condition (id., at 249, 472 N.Y.S.2d 368) or had actual or constructive knowledge of the condition (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   Furthermore, “ ‘[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the owners'] employees to discover and remedy it’ ” (O'Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717, quoting Gordon v. American Museum of Natural History, supra, at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   The burden may also be satisfied by providing evidence that an “ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed by the landlord” (O'Connor-Miele v. Barhite & Holzinger, supra, at 106-107, 650 N.Y.S.2d 717).   However, a mere general awareness of some dangerous condition is legally insufficient to establish constructive notice (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795).

 Defendants have met their burden of demonstrating the absence of notice as a matter of law.   As the Appellate Division, Second Department observed in Mercer v. City of New York, 223 A.D.2d 688, 689, 637 N.Y.S.2d 456, affd. 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443, “the existence of a patch of oil or a slippery foreign substance on a floor does not, in and of itself, give rise to a cause of action sounding in negligence” (see also, Goodman v. 78 West 47th St. Corp., 253 A.D.2d 384, 386, 677 N.Y.S.2d 116).   While plaintiff is correct that he bears no burden to identify the substance that caused him to slip and fall (Colt v. Great Atl. & Pacific Tea Co., 209 A.D.2d 294, 295, 618 N.Y.S.2d 721), mere speculation regarding causation is inadequate to sustain the cause of action (see, Pagan v. Local 23-25 International Ladies Garment Workers Union, 234 A.D.2d 37, 38, 650 N.Y.S.2d 214;  Knight v. Certified Oils, 239 A.D.2d 391, 392, 658 N.Y.S.2d 337;  Vinicio v. Marriott, 217 A.D.2d 656, 657, 629 N.Y.S.2d 799).   Plaintiff, who testified only to seeing “stuff” on the floor of the lobby, has merely established that there was an “oily substance” on his shoes with no known etiology.   While surmising that it might have come from the garbage room located across the hall from defendant Champ, plaintiff testified that he never saw any substance emanating from that source (cf., Hecker v. New York City Hous. Auth., 245 A.D.2d 131, 665 N.Y.S.2d 660 [large chip missing on stair];  Montalvo v. Western Estates, Ltd., 240 A.D.2d 45, 46, 669 N.Y.S.2d 562 [leak from nearby dumpster and previous slick conditions];  Colt v. Great Atl. & Pacific Tea Co., supra, at 295, 618 N.Y.S.2d 721 [fall on vegetable debris in commonly littered produce aisle] ).

MEMORANDUM DECISION.