GRACCHI v. ITALIANO

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

Mary GRACCHI, Appellant, v. Frank ITALIANO, et al., Respondents.

Decided: January 22, 2002

NANCY E. SMITH, J.P., WILLIAM D. FRIEDMANN, THOMAS A. ADAMS and SANDRA L. TOWNES, JJ. Favata & Wallace, LLP, Garden City, N.Y. (Alan Brinn and William G. Wallace of counsel), for appellant. Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Bucaria, J.), dated December 6, 2000, which granted the defendants' motion for summary judgment dismissing the complaint, and (2), as limited by her brief, from so much of an order of the same court, dated April 27, 2001, as upon, in effect, granting reargument, adhered to the prior determination.

ORDERED that the appeal from the order dated December 6, 2000, is dismissed, as that order was superseded by the order dated April 27, 2001, made upon reargument;  and it is further,

ORDERED that the order dated April 27, 2001, is reversed insofar as appealed from, on the law, the order dated December 6, 2000, is vacated, the motion for summary judgment dismissing the complaint is denied, and the complaint is reinstated;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The plaintiff commenced this action to recover damages for personal injuries which she allegedly sustained when she slipped and fell on a hardwood floor in the defendants' house.   The defendant Frank Italiano had waxed the hardwood floor the week before the accident.   The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint by order dated December 6, 2000.   The plaintiff then moved for leave to reargue.   By order dated April 27, 2001, the Supreme Court stated that the plaintiff's motion for leave to reargue was denied.   Nevertheless, the Supreme Court considered the merits and adhered to its prior determination.   Consequently, the order dated April 27, 2001, is appealable (see, Caccioppoli v. Long Is. Jewish Med. Center, 271 A.D.2d 565, 706 N.Y.S.2d 145;  Price v. Palagonia, 212 A.D.2d 765, 623 N.Y.S.2d 269).

 Although “[t]he fact that a floor is slippery by reason of its smoothness or polish, in the absence of a negligent application of wax or polish, does not give rise to a cause of action or give rise to an inference of negligence” (Silver v. Brodsky, 112 A.D.2d 213, 214, 490 N.Y.S.2d 865;  see, Paul v. Roman Catholic Church of Holy Innocents, 226 A.D.2d 515, 641 N.Y.S.2d 330;  Sapinkopf v. Marriott Host, 224 A.D.2d 512, 638 N.Y.S.2d 153), “[a] prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor” (Galler v. Prudential Ins. Co. of Amer., 63 N.Y.2d 637, 638, 479 N.Y.S.2d 509, 468 N.E.2d 691;  see, Ullman v. Cohn, 248 A.D.2d 200, 669 N.Y.S.2d 591).

 The defendants made a prima facie showing of entitlement to judgment as a matter of law.   In opposition, however, the plaintiff raised a triable issue of fact as to whether Frank Italiano negligently waxed the floor.   The plaintiff submitted a statement signed by the defendants stating that the plaintiff slipped and fell “when she hit the patch of paste wax” left on the floor after Frank Italiano had waxed it (see, Ullman v. Cohn, supra).   Contrary to the defendants' contention, this signed statement is admissible against them (see, Letendre v. Hartford Acc. & Ind. Co., 21 N.Y.2d 518, 523, 289 N.Y.S.2d 183, 236 N.E.2d 467;  People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288;  DeProssino v. Noorzad, 225 A.D.2d 581, 638 N.Y.S.2d 782;  Morrissey v. City of New York, 221 A.D.2d 607, 634 N.Y.S.2d 185;  Prince, Richardson on Evidence § 8-201 [Farrell 11th ed.] ).   Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

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