SCHIRRIPA v. WALDBAUMS SUPERMARKET (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Reichbach, J.), dated January 14, 2000, which granted the separate motions of the respective defendants for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff alleged that she slipped and fell in the aisle of a grocery store owned by the defendant Waldbaums Supermarket (hereinafter Waldbaums) on a “foreign waxy substance”, as a result of the negligent application of wax by the defendant Quality Cleaners Services (hereinafter Quality Cleaners), a floor maintenance company hired by Waldbaums to clean its floors.   The Supreme Court granted the defendants' separate motions for summary judgment, finding that there was no factual issue regarding whether the defendants created the hazardous condition, or had actual or constructive notice thereof.

 Summary judgment was properly granted.   Contrary to the plaintiff's contentions, the record is devoid of any evidence to establish that the substance complained of was, in fact, wax, and that a hazardous condition was created by negligent application of wax by Quality Cleaners (see, Malmut v. Lindenwood Vil. Coop Corp., 272 A.D.2d 528, 708 N.Y.S.2d 442;  Brandefine v. National Cleaning Contr., 265 A.D.2d 441, 696 N.Y.S.2d 520;  Prisco v. Long Island Univ., 258 A.D.2d 451, 684 N.Y.S.2d 604;  Lathan v. NCAS Realty Mgt. Corp., 240 A.D.2d 474, 658 N.Y.S.2d 436;  Pizzi v. Bradlee's Div. of Stop & Shop, 172 A.D.2d 504, 567 N.Y.S.2d 852).

 Moreover, the plaintiff failed to submit sufficient evidence in response to the defendants' motions to raise a triable issue of fact regarding whether the defendants had actual or constructive notice of an alleged foreign substance on the floor prior to the accident (see, Marku v. 33 S & P Realty Corp., 251 A.D.2d 633, 676 N.Y.S.2d 206).