Lowrey v. Cumberland Farms, Inc.

Mercure, J.

Appeal from an order of the Supreme Court (Doran, J.), entered July 17, 1989 in Schenectady County, which denied defendant’s motion for summary judgment dismissing the complaint and granted third-party defendant’s motion for summary judgment dismissing the third-party complaint.

Plaintiff Lynn Lowrey (hereinafter plaintiff) commenced this action to recover for damages allegedly incurred as a result of her slip and fall in defendant’s store. In the third-party complaint, defendant alleges that plaintiff’s injuries were caused by the negligence of third-party defendant, an independent cleaning service, in cleaning and waxing the floor earlier the same morning. Following joinder of issue, service of bills of particulars and depositions of the parties, defendant moved for summary judgment dismissing the complaint and third-party defendant moved for summary judgment dismissing the third-party complaint. Supreme Court denied defendant’s motion and granted third-party defendant’s motion. Defendant appeals.

On its motion, defendant came forward with examination before trial testimony of plaintiff, defendant and third-party defendant, which competently established the following circumstances. During the early morning hours of October 13, 1986, third-party defendant’s owner, Ronald Metzger, and an employee, Mark Scott, performed cleaning services at defendant’s store, v/hich consisted of stripping a buildup of old wax from the store’s tile floor and then cleaning, rinsing and applying three coats of finish wax to the floor. Metzger testified that when he and Scott left the premises, the wax was dry. Phyllis Lighthall, an employee of defendant, testified that she opened the store at 6:00 a.m. and found the floor to be clean and shiny but not slippery. Plaintiff entered the store just before 8:00 a.m., at which time it was either raining or snowing, wiped her feet on a carpet inside the door, took two *778steps on the carpet and then slipped with her first step on the waxed tile floor. Plaintiff testified that she saw no oil or other type of foreign substance in the parking lot or on the sidewalk of the premises and that she looked at the soles of her shoes after the incident, to see what had caused her to fall, and found nothing. Notably, plaintiff testified that the floor inside the store was clean and dry and that there was no wet area.

In order to impose liability upon defendant, there must be evidence tending to show the existence of a dangerous or defective condition and that defendant either created the condition or had actual or constructive knowledge of it (see, Lewis v Metropolitan Transp. Auth., 64 NY2d 670, affg 99 AD2d 246; Payne v Big V Supermarkets, 140 AD2d 422). Additionally, it is well established that " 'the fact that a floor is slippery by reason of its smoothness or polish, in the absence of proof 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’ ” (Swartz v Rose, 40 AD2d 1028, 1029; see, Galler v Prudential Ins. Co., 99 AD2d 720, affd 63 NY2d 637; Nelson v Salem Danish Lutheran Church, 270 App Div 1030, affd 296 NY 870).

Clearly, defendant made a prima facie showing that neither it nor third-party defendant was negligent, thereby shifting the burden to plaintiff to come forward with evidentiary proof sufficient to raise triable issues of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562; Fischer v Battery Bldg. Maintenance Co., 135 AD2d 378, 380). In our view, and contrary to Supreme Court’s determination, plaintiff failed to satisfy that burden. In an affidavit in opposition to the motion, plaintiff stated that she was in error when she testified that the floor was not wet. Instead, she now assumes a neutral position, stating that she "cannot say that [she] observed any wet area or any other substance”. However, because of the precipitation outside, she opines that "the floor inside the store must have been wet unless someone was periodically mopping up the water”. As properly contended by defendant, the first of these statements does not furnish proof of negligence and the second is conclusory and incompetent (see, supra).

Further, plaintiff’s vague testimony concerning a store employee’s admission that two other people had slipped or fallen does not assist her here, where there is no detail as to time and place. As a final matter, we reject the contention that defendant’s motion should have been denied in order to permit further disclosure in the absence of a showing that any *779additional evidence would assist in raising a factual issue (see, Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026; Griffin v Cortland Mem. Hosp., 85 AD2d 837, Iv denied 56 NY2d 507). Accordingly, since there are no genuine factual issues concerning the negligence of defendant or third-party defendant, both motions for summary judgment should have been granted.

Order modified, on the law, without costs, by reversing so much thereof as denied defendant’s motion; motion granted, summary judgment awarded to defendant and complaint dismissed; and, as so modified, affirmed. Casey, J. P., Yesawich, Jr., Mercure and Harvey, JJ., concur.