LEE v. RITE AID OF NEW YORK INC (1999)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated April 17, 1998, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 It is well settled that in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to any inference of negligence (see, Guarino v. La Shellda Maintenance Corp., 252 A.D.2d 514, 675 N.Y.S.2d 374;  Lathan v. NCAS Realty Mgt. Corp., 240 A.D.2d 474, 658 N.Y.S.2d 436;  Sapinkopf v. Marriott Host, 224 A.D.2d 512, 638 N.Y.S.2d 153;  Calabrese v. B.P.O. Elks Lodge 744, 215 A.D.2d 345, 626 N.Y.S.2d 224).

 The plaintiff adduced no proof as to the cause of her slip and fall in the defendant's store.   Indeed, the plaintiff merely averred that the floor was “very slippery”, and speculated that this condition was caused by the defendant's improper waxing.   However, she further testified that she did not notice any foreign matter or any wax buildup in the area where she fell, nor did she observe that her clothes were in any way stained as a result of coming into contact with the floor (cf., Diehr v. Association for Retarded Citizens of Chemung County, 233 A.D.2d 818, 650 N.Y.S.2d 396;  Panagakos v. Greek Archdiocese of N. & S. Am., 213 A.D.2d 336, 624 N.Y.S.2d 37).   Under these circumstances, the plaintiff failed to raise a material issue of fact sufficient to defeat the defendant's motion after the defendant established a prima facie case for summary judgment (see, Anderson v. 35 W. 23rd St. Condominium, 240 A.D.2d 446, 658 N.Y.S.2d 651;  see also, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM BY THE COURT