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

Virko MARKU, et al., Appellants, v. 33 S & P REALTY CORP., Respondent.

Decided: June 29, 1998

PIZZUTO, J.P., SANTUCCI, ALTMAN and LUCIANO, JJ. Ioannou & Associates, New York City (John Ioannou and Matthew A. Tedone, of counsel), for appellants. Barron, McDonald, Carroll Cohen & Harris, Brooklyn (Lawrence A. Salvato, of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated July 25, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Virko Marku was injured when she fell down a staircase on premises owned by the defendant.   The defendant established its prima facie entitlement to summary judgment dismissing the complaint as the plaintiffs' deposition testimony failed to show that there was an unsafe condition on the stairs which was created by the defendant or of which it had actual or constructive notice (see, Kraemer v. K-Mart Corp., 226 A.D.2d 590, 641 N.Y.S.2d 130).

In opposition to the defendant's motion, the plaintiffs contend that there are triable issues of fact with respect to their claim that the defendant created a dangerous condition by waxing the stairs.  “Where a dangerous condition has been created by the defendant itself, such constitutes actual notice sufficient to establish a prima facie case” (Zino v. City of New York, 111 A.D.2d 847, 848, 490 N.Y.S.2d 586).   The deposition testimony relied upon by the plaintiffs does not, however, establish that wax had been recently applied to the stairs.   In any event, a claim that the stairs were slippery due to wax does not give rise to a cause of action or an inference of negligence in the absence of evidence that the wax was negligently applied (see, e.g., Pagan v. Local 23-25 Intl. Ladies Garment Workers Union, 234 A.D.2d 37, 650 N.Y.S.2d 214;   Kraemer v. K-Mart Corp., supra;  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;  Gootman v. Village of Haverstraw, 200 A.D.2d 829, 606 N.Y.S.2d 411).   Since the plaintiffs' submissions failed to raise a triable issue of fact, the defendant was entitled to summary judgment.


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