FORMAN v NEW YORK CITY HOUSING AUTHORITY

Full title: DELORES FORMAN, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant

Court: Supreme Court of the State of New York, New York County

Date published: Aug 6, 2008

2008 N.Y. Slip Op. 32234 (N.Y. Sup. Ct. 2008)

Opinion

0101887/2006.

August 6, 2008.

DECISION/ORDER

BARBARA R. KAPNICK, J.:

In this action, plaintiff Delores Forman seeks to recover damages for personal injuries she sustained on October 7, 2005 when she slipped and fell in the 14^th floor hallway of defendant New York City Housing Authority's building located at 60 East 106^th Street in Manhattan where she lived. Plaintiff claims that the floor was covered with collections and/or `clots' of wax, causing her to lose her balance and fall.

Defendant does not dispute that the hallway had been waxed, but claims that the waxing was completed approximately 17 hours prior to plaintiff's accident and that the floor was dry.

Defendant now moves for summary judgment dismissing plaintiff's Complaint on the ground that plaintiff, who did not see the wax on the floor before she fell, has failed to present any evidence that the hallway was improperly waxed.

In Caran v Hilton Hotels Corp., 299 AD2d 252 (1st Dep't 2002), lv dismissed, 3 NY3d 693 (2004), rearg. den. 4 NY3d 847 (2005), the Appellate Division, First Department, held that

Plaintiff's assertion that the slippery condition of the floor was created by excessive or improper waxing is based on nothing more than her observation that the floor was "shiny." Since neither smoothness nor slipperiness, without more, permits an inference of negligent waxing or polishing, the action was properly dismissed.

See also, Davies v City of New York, 39 AD3d 390 (1^st Dep't 2007), lv denied, 9 NY3d 808 (2007); Mallios v B. Smith's Restaurant, 8 AD3d 117 (1^st Dep't 2004), lv denied, 3 NY3d 612 (2004).

In the instant case, plaintiff has not merely alleged that the floor was "shiny", but also claims that there was an accumulation of wax on the floor.

Defendant contends that this claim is not supported by plaintiff's own deposition testimony, and argues that there is no evidence to support a finding that the alleged piles of wax were more than de minimus.

Plaintiff testified that she walked along the floor three times after it was waxed and before her accident, and admitted that she did not notice anything about the condition of the floor when she walked from the elevator to her apartment the night before.

Plaintiff, however, also testified that she saw a neighbor, who they call Martin, in the elevator earlier that morning after dropping her daughter off at the bus, and that they commented that "the floor looked nice today, but it was slippy." Plaintiff acknowledged that she did not see the wax that caused her to slip before her accident, but testified that after she turned the corner and slipped, she saw

[l]ike clots of white wax. Clot like cross the side. Like where I fell at, you could see where I slipped at. It's like clot, like you put wax on the floor and you don't clean it good.

Plaintiff has also submitted an affidavit from another resident of the building, Ernestine Blount, who claims that she "was able to see many piles of wax all over the hallway floor, also near Ms. Forman's and my apartments, such that walking in the hallway was very dangerous." She further claims that defendant's workers who waxed the floor "were very sloppy and left big piles of the wax all over the hallway and did not spread it out or buff the floor enough to get rid of the piles of wax."

In addition, plaintiff has annexed an affidavit from her son, Eric Forman, who claims that he "saw a large pile or collection of wax on the hallway floor where [his] mother fell." He further alleges that

[t]here were other collections of wax as well, as if someone had heaped a tremendous amount of wax on the floor and smeared it a bit with a waxing machine without getting to or picking up whatever residual there was after using the machine. Walking in the hallway was very dangerous due to the wax.

Based on the papers submitted in which plaintiff sets forth more than just that the floor was shiny or slippery, and the oral argument held on the record on June 4, 2008, this Court finds that there are outstanding issues of fact as to whether defendant was negligent in the manner in which it applied the wax and whether the wax condition was a substantial factor in causing plaintiff's accident.

Accordingly, defendant's motion for summary judgment is denied.

This constitutes the decision and order of this Court.