FAIELLA v. ORADELL CONSTRUCTION COMPANY INC (2019)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff Stephanie Faiella (hereinafter the injured plaintiff) slipped and fell on a recently painted walkway at her place of employment.  The walkway was painted several days prior to her accident.  The plaintiff's employer contracted with Oradell Construction Company, Inc. (hereinafter Oradell), to construct the walkway, and Oradell subcontracted the painting of the walkway to V & V Parking Lot Services, Inc. (hereinafter V & V).  The walkway was first painted with an epoxy-based paint and then covered with a clear sealant.

The injured plaintiff, and her husband suing derivatively, commenced an action against Oradell, and the injured plaintiff commenced a separate action against V & V. The two actions were subsequently consolidated.  Following the completion of discovery, Oradell moved, inter alia, for summary judgment dismissing the complaint asserted against it, and V & V cross-moved, inter alia, for summary judgment dismissing the complaint asserted against it.  The Supreme Court granted the motion and the cross motion, and the plaintiff appeals.

A defendant may not be held liable for the application of “wax, polish, or paint to a floor ․ unless the defendant had actual, constructive, or imputed knowledge” that the product could render the floor dangerously slippery (Walsh v. Super Value, Inc., 76 A.D.3d 371, 372, 904 N.Y.S.2d 121;  see Hernandez v. BP Am., Inc., 123 A.D.3d 1095, 1096, 1 N.Y.S.3d 235).  Here, Oradell and V & V met their prima facie burden for summary judgment by establishing that they did not have actual, constructive, or imputed knowledge that the subject paint could render the walkway slippery (see Walsh v. Super Value, Inc., 76 A.D.3d at 372, 904 N.Y.S.2d 121).

In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  The plaintiffs' assertion, set forth in an attorney's affirmation and not supported by any expert opinion evidence, that grit should have been mixed into the paint to provide a slip-resistant walking surface, involves matter outside the ordinary experience and knowledge of laypersons and, therefore, lacked probative value (see Bistre v. Rongrant Assoc., 109 A.D.3d 778, 779, 971 N.Y.S.2d 143).

In light of our determination, the parties' remaining contentions are academic.

RIVERA, J.P., COHEN, LASALLE and CONNOLLY, JJ., concur.