NEAL v. SERVICEMASTER COMPANY SERVICEMASTER INC

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Supreme Court, Appellate Division, First Department, New York.

Vida O'NEAL, et al., Plaintiffs-Appellants, v. The SERVICEMASTER COMPANY/SERVICEMASTER, INC., Defendant-Respondent.

Decided: October 18, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, SWEENY, JJ. Sherman & Basichas, LLP, New York (Alisa R. Lebensohn of counsel), for appellants. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola (Elizabeth Gelfand Kastner of counsel), for respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered August 19, 2004, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.

No issues of fact exist as to whether defendant, which was under contract with plaintiff's employer, a hospital, to perform housekeeping management services, created the alleged dangerous condition that caused plaintiff's fall, or had notice thereof.   There is no evidence that a maintenance employee actually mopped the floor before plaintiff's accident (see Sanchez v. Delgado Travel Agency, 279 A.D.2d 623, 719 N.Y.S.2d 887 [2001], lv. denied 96 N.Y.2d 711, 727 N.Y.S.2d 697, 751 N.E.2d 945 [2001];  see also Loschiavo v. Port Auth., 58 N.Y.2d 1040, 462 N.Y.S.2d 440, 448 N.E.2d 1351 [1983], affg. 86 A.D.2d 624, 446 N.Y.S.2d 358 [1982] ), or even that the alleged soapy substance on the floor emanated from cleaning activity.   Indeed, plaintiff, a scrub nurse, testified that scrub sinks lined the hallway she walked through in order to reach the entrance to the nurse's on-call room, where she fell.   Thus, the soapy substance could well have been tracked into the area by another nurse.   Plaintiff's claim that it was created by defendant's negligent maintenance of the floor being entirely speculative, summary judgment was properly granted in defendant's favor (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).