Opinion
2019–01614 Index No. 614480/16
07-15-2020
LANCENE UNION, Respondent, v. EXCEL COMMERCIAL MAINTENANCE, Appellant.
Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), for appellant. Mirabella & Franzi, Garden City, N.Y. (Timothy J. Broschardt of counsel), for respondent.
Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), for appellant.
Mirabella & Franzi, Garden City, N.Y. (Timothy J. Broschardt of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated December 13, 2018. The order, insofar as appealed from, denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On the morning of January 12, 2015, the plaintiff allegedly slipped and fell in the hallway of Briarcliffe College in Suffolk County. The plaintiff commenced this personal injury action against the defendant, a cleaning service contractor, alleging that the defendant created a hazardous condition by negligently waxing the floor. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that it did not owe the plaintiff a duty of care. The Supreme Court denied the defendant's motion. The defendant appeals.
"Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" ( Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm" ( Bruce v. Edgewater Indus. Park, LLC, 169 A.D.3d 753, 754, 92 N.Y.S.3d 383 ; see Espinal v. Melville Snow Contrs. , 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Christian v. 709 Brighton Beach, LLC, 167 A.D.3d 704, 705, 87 N.Y.S.3d 489 ). "Where such a duty is alleged, a defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of" ( Bruce v. Edgewater Indus. Park, LLC, 169 A.D.3d at 754, 92 N.Y.S.3d 383 ; see George v. Marshalls of MA, Inc. , 61 A.D.3d 925, 928, 878 N.Y.S.2d 143 ).
"A defendant may not be held liable for the application of ‘wax, polish, or paint to a floor ... unless the defendant had actual, constructive, or imputed knowledge’ that the product could render the floor dangerously slippery" ( Faiella v. Oradell Constr. Co., Inc. , 171 A.D.3d 1013, 1014, 98 N.Y.S.3d 270, quoting Walsh v. Super Value, Inc. , 76 A.D.3d 371, 372, 904 N.Y.S.2d 121 ). "In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence" ( Khaimova v. Osnat Corp. , 21 A.D.3d 401, 402, 799 N.Y.S.2d 779 ; see Kapoor v. Randlett, 144 A.D.3d 984, 985, 42 N.Y.S.3d 232 ).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create or launch an instrument of harm by the negligent application of wax to the floor where the plaintiff's accident occurred, and thus, it did not owe the plaintiff a duty of care (see Kapoor v. Randlett, 144 A.D.3d at 985, 42 N.Y.S.3d 232 ; Khaimova v. Osnat Corp. , 21 A.D.3d at 402, 799 N.Y.S.2d 779 ; see generally Turner v. Birchwood on the Green Owners Corp. , 171 A.D.3d 1119, 1121, 98 N.Y.S.3d 323 ). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff did not produce any evidence of negligence on the part of the defendant in the application of floor wax (see Khaimova v. Osnat Corp. , 21 A.D.3d at 402, 799 N.Y.S.2d 779 ; Cribbs v. ISS Intl. Serv. Sys. , 300 A.D.2d 339, 340, 751 N.Y.S.2d 534 ).
In light of our determination, we need not reach the defendant's remaining contention.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
MASTRO, J.P., DILLON, CHRISTOPHER and WOOTEN, JJ., concur.