Opinion
March 11, 1996
Appeal from the Supreme Court, Nassau County (McCarty, J.).
Ordered that the cross appeal of the defendant D. J. Refreshments, Inc., is dismissed, as it is not aggrieved by the portion of the order cross-appealed from (see, CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from by the defendant Nassau County Department of Social Services, on the law, the branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the defendant Nassau County Department of Social Services is granted, and the complaint is dismissed; and it is further,
Ordered that the defendant Nassau County Department of Social Services is awarded one bill of costs.
The Supreme Court properly dismissed the complaint insofar as asserted against the defendant D. J. Refreshments, Inc. (hereinafter D. J.). The proof offered by the defendants was sufficient to show that the defendant D. J. was not negligent in its design and/or operation of the cafeteria, and the plaintiffs failed to offer sufficient evidentiary proof to show the existence of a factual question requiring denial of summary judgment (see, Zuckerman v City of New York, 49 N.Y.2d 557; Hagan v General Motors Corp., 194 A.D.2d 766; Morrison v Flintosh, 163 A.D.2d 646; Spearmon v Times Sq. Stores Corp., 96 A.D.2d 552; see also, Ricard v Roseland Amusement Dev. Corp., 215 A.D.2d 240).
However, the Supreme Court erred in not granting the branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Nassau County Department of Social Services (hereinafter the DSS). The allegations in the plaintiffs' complaint, together with the additional evidence offered by them in opposition to the motion for summary judgment, showed only that an unknown person spilled hot liquid on the plaintiff Terrence King thereby burning him.
According the plaintiffs every favorable inference, as we must, the evidence presented was insufficient to permit the plaintiffs to prove a prima facie case of negligence against the DSS. In order to recover against the DSS, the fact-finder would have to impermissibly speculate as to: (1) the identity of the unknown person who had spilled hot liquid on the plaintiff Terrence King; and (2) whether or not that person was employed by the DSS (see generally, Lynn v Lynn, 216 A.D.2d 194; Schafrick v Shinnecock Bait Tackle Co., 204 A.D.2d 706; Camillery v Halfmann, 184 A.D.2d 488; Santos v City of New York, 130 A.D.2d 476). It was therefore error to have denied the branch of the motion which was to dismiss the complaint as against the DSS.
We have considered the plaintiffs' remaining contentions and find them to be without merit. Balletta, J.P., Joy, Krausman and Florio, JJ., concur.