Opinion
June 3, 1996
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiffs are all employees at a restaurant in the Travelodge Hotel located at John F. Kennedy International Airport. In 1988 the third-party defendant, Forte Hotels International, Inc., now known as Forte Hotels, Inc., contracted with the defendant third-party plaintiff, Hirschbedner Associates (hereinafter Hirschbedner), to design the renovation for the Travelodge. Included in the renovation was the installation of marble floors in the buffet/food service area of the hotel. While working at the Travelodge, each of the plaintiffs slipped and fell on those floors and sustained injuries.
Thereafter, the plaintiffs brought this action to recover damages for negligence, breach of warranty, and strict liability against Hirschbedner and the defendants Design Supply Marble and Granite, Inc. (hereinafter DSMG) and Pompei Construction, Inc. (hereinafter Pompei), the seller and the installer, respectively, of the tiles. After issue was joined, Hirschbedner moved and DSMG and Pompei separately cross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court, inter alia, granted the motion and cross motions for summary judgment dismissing the complaint.
On appeal, the plaintiffs argue that summary judgment should not have been granted because designers are not immune from liability where injuries result because of the design and selection of an excessively slippery floor, that Hirschbedner did not exercise due care in installing the floors, and that DSMG and Pompei did not exercise due care when they selected, sold, and installed the floor.
The Supreme Court properly dismissed the complaint. In the absence of a negligent application of wax or polish, no cause of action for negligence will lie for injuries sustained due to a fall on a floor surface that was slippery by reason of its smoothness ( see, e.g., Kline v. Abraham, 178 N.Y. 377; see also, Murphy v. Conner, 84 N.Y.2d 969; Katz v. New York Hosp., 170 A.D.2d 345; Silver v. Brodsky, 112 A.D.2d 213). The plaintiffs' attempt to distinguish Kline v. Abraham (supra) and its progeny on the basis that those cases involved allegedly excessive added polish and this case involves purported excessive permanent polish is without merit.
Furthermore, the plaintiffs offered no evidence that the tiles were defective. Therefore, the causes of action alleging breach of warranty ( see, 2C Warren's Negligence in the New York Courts, § 88.03, at 623, 636) and strict liability ( see, e.g., Caprara v. Chrysler Corp., 52 N.Y.2d 114), were properly dismissed. Ritter, J.P., Thompson, Hart and McGinity, JJ., concur.