Opinion
Decided July 3, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Arthur E. Blyn, J.
Edward P. Dunphy for appellant.
Martin M. McGlynn for Prudential Insurance Company of America and another, respondents.
Joseph D. Ahearn for Arcade Cleaning Contractors, Inc., respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, although on somewhat different reasoning. Silva v American Irving Sav. Bank ( 31 A.D.2d 620, affd without opn 26 N.Y.2d 727), on which it relied, was an action against the building owner; the cleaning contractor was not a party defendant. We affirmed in that case not on the basis that the proof was insufficient to establish negligent waxing, but because there was insufficient proof of notice, actual or constructive, on the part of the owner (see Madrid v City of New York, 42 N.Y.2d 1039; and Golding v Mauss, 27 N.Y.2d 580, which revd on dissent at Appellate Division, notwithstanding the citation of Silva by the majority in that court as to the sufficiency of the proof).
A prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor ( Conroy v Montgomery Ward Co., 300 N.Y. 540, affg without opn 275 App. Div. 980; Davis v Kresge Co., 267 App. Div. 850, mot for lv to app den 292 N.Y. 723; 1 PJI 2:91, p 273). Here, however, the evidence was insufficient to establish prima facie that what plaintiff slipped on was a wax residue (see Rempe v Betts, 8 N.Y.2d 905, affg without opn 8 A.D.2d 738).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.