GOLDBLATT v. Sears, Roebuck & Co., Third-Party Defendant-Respondent.

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

Deborah GOLDBLATT, et al., Appellants, v. LaSHELLDA MAINTENANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent; Sears, Roebuck & Co., Third-Party Defendant-Respondent.

Decided: December 26, 2000

WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. The Breakstone Law Firm, P.C., Bellmore, N.Y. (Jay L.T. Breakstone of counsel), for appellants. Puglisi & Michioka, P.C., Lake Success, N.Y. (Robin Mary Heaney of counsel), for defendant third-party plaintiff-respondent. Gregory J. Parisi, Mineola, N.Y., for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated October 12, 1999, which granted the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint.

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

The injured plaintiff, Deborah Goldblatt, allegedly slipped and fell on a vinyl tile floor at her workplace, a store owned by the third-party defendant Sears, Roebuck & Co. (hereinafter Sears) in Hicksville.   The defendant third-party plaintiff, LaShellda Maintenance Company (hereinafter LaShellda) was responsible for daily cleaning of the store.   The plaintiffs alleged that the floor was slippery because LaShellda failed to apply a finish to the floor after stripping it.

After LaShellda established a prima facie case of its entitlement to summary judgment, the plaintiffs failed to raise a triable issue of fact.   Absent proof of a reason for a fall other than the “inherently slippery” condition of a floor, no cause of action sounding in negligence can be sustained (see, Brandefine v. National Cleaning Contr., 265 A.D.2d 441, 696 N.Y.S.2d 520;  Bouloukos v. Vassar Bros. Hosp., 262 A.D.2d 342, 691 N.Y.S.2d 570;  Lee v. Rite Aid of New York, 261 A.D.2d 368, 689 N.Y.S.2d 199).   In this case, the plaintiffs submitted no expert testimony to support the claim that stripping a tile floor and leaving it without a finish created a dangerous condition (see, Klar v. Pegno Constr. Corp., 266 A.D.2d 434, 698 N.Y.S.2d 537;  Rivera v. Adinolfi, 249 A.D.2d 55, 671 N.Y.S.2d 57).   The plaintiffs' opposition papers were therefore insufficient to defeat the prima facie showing by LaShellda of its entitlement to summary judgment (see, CPLR 3212[b] ).

The plaintiffs' contention that the tiles were worn smooth because of the maintenance of the floor by LaShellda is improperly raised for the first time on appeal, and, in any event, is not supported by the record (see, First Nationwide Bank, FSB v. Goodman, 272 A.D.2d 433, 707 N.Y.S.2d 669;  Matter of ELRAC v. Edwards, 270 A.D.2d 414, 705 N.Y.S.2d 265).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment.

MEMORANDUM BY THE COURT.

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