Even assuming, arguendo, that on the day of the accident the Metro–North employees did use a higher than recommended soap concentration, of which there is no direct evidence on the record, New York case law holds that a property owner's application of a substancesuch as wax, polish, paint, or in this case, soap, does not support a negligence cause of action unless the manner of application itself was negligent. See Early v. Hilton Hotels Corp., 73 A.D.3d 559, 562, 904 N.Y.S.2d 367 (1st Dep't 2010); Mroz v. Ella Corp., 262 A.D.2d 465, 465, 692 N.Y.S.2d 156 (2d Dep't 1999) (“It is well settled that in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence.”); Kociecki v. EOP–Midtown Properties, LLC, 888 N.Y.S.2d 135, 136, 66 A.D.3d 967, 967 (2d Dep't 2009) (same); German v. Campbell, 37 A.D.3d 405, 405, 829 N.Y.S.2d 631 (2d Dep't 2007) (“The expert affidavit submitted in opposition to the motion merely alleged that the application of the paint to the floor made it inherently slippery, which was insufficient to raise a triable issue of fact.”). “For a plaintiff to prove prima facie negligence, even if she can credibly infer creation by defendant, she must show the creation was an affirmative, ‘deliberate and intentional’ act by defendant.”
However, the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation" (Grande v Won Hee Lee, 171 A.D.3d 877, 878-879 [citations and internal quotation marks omitted]). Moreover, "[i]n 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" (Union v Excel Commercial Maintenance, 185 A.D.3d 869, 870 [internal quotation marks omitted]; see Mroz v Ella Corp., 262 A.D.2d 465, 466). In other words, "[a]bsent proof of a reason for a fall other than the inherently slippery condition of the floor, no cause of action sounding in negligence can be sustained" (Lindeman v Vecchione Const. Corp., 275 A.D.2d 392, 392 [internal quotation marks omitted]).
We reverse.During the injured plaintiff's deposition, the transcript of which was submitted in support of the defendants' motion, he testified that he did not see any foreign substance, liquids, or other slippery substance on the steps, either before or after the subject accident. “[I]n the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence” (Mroz v. Ella Corp., 262 A.D.2d 465, 465, 692 N.Y.S.2d 156 ; see Kociecki v. EOP–Midtown Props., LLC, 66 A.D.3d 967, 888 N.Y.S.2d 135 ). Here, in support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as was based on the defendants' alleged negligent application of wax or polish to the subject staircase (see Murphy v. Conner, 84 N.Y.2d 969, 622 N.Y.S.2d 494, 646 N.E.2d 796 ; German v. Campbell Inn, 37 A.D.3d 405, 829 N.Y.S.2d 631 ; Palermo v. Roman Catholic Diocese of Brooklyn, N.Y., 20 A.D.3d 516, 799 N.Y.S.2d 248 ; Rodriguez v. Kimco Centereach 605, 298 A.D.2d 571, 749 N.Y.S.2d 543 ; Lindeman v. Vecchione Constr. Corp., 275 A.D.2d 392, 712 N.Y.S.2d 594 ).
There is no evidence that defendant was aware that its use of a non-defective chair on a non-defective floor created a dangerous condition, if indeed a dangerous condition had been created. Moreover, even assuming, arguendo, that the concrete floor was slippery, we conclude that “[t]he use of flooring material that is inherently slippery is not, by itself, actionable negligence” (N.Y. PJI 2:91, Comment [F] at 624; see Mroz v. Ella Corp., 262 A.D.2d 465, 466, 692 N.Y.S.2d 156). In response to defendant's motion, plaintiff failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). As the court stated in its decision, the opinions offered by plaintiff's expert in his affidavit were insufficient to raise an issue of fact because, inter alia, there is no indication that he visited the scene of the accident or performed tests on the floor.
In granting the motions, the Supreme Court relied on a long line of authority dealing with slip-and-fall injuries caused by slippery floors. Specifically, the court interpreted a succession of cases as holding that a property owner's application of wax, polish, or paint to a floor, making the floor slippery, will not support a negligence action unless the manner of application was itself negligent ( see e.g. Kociecki v EOP-Midtown Props., LLC, 66 AD3d 967; German v Campbell Inn, 37 AD3d 405; Rodriguez v Kimco Centereach 605, 298 AD2d 571, 571-572; Larussa v Shell Oil Co., 283 AD2d 403; Werner v Neary, 264 AD2d 731; Mroz v Ella Corp., 262 AD2d 465; see also Crawford v Jefferson House Assoc, LLC, 57 AD3d 822, 823; Nelson v Salem Danish Lutheran Church, 270 App Div 1030, affd 296 NY 870; cf. Murphy v Conner, 84 NY2d 969, 971-972; Kline v Abraham, 178 NY 377, 380 [1904]). Walsh argues that these cases do not stand for any such broad proposition.
The plaintiff stated, during his deposition, that the staircase was free of any foreign substance or cracks. "[I]n the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence" ( Mroz v Ella Corp., 262 AD2d 465, 466), and the defendant submitted evidence sufficient to establish its entitlement to judgment as a matter of law ( see Murphy v Conner, 84 NY2d 969; German v Campbell Inn, 37 AD3d 405; Palermo v Roman Catholic Diocese of Brooklyn, N.Y., 20 AD3d 516; Rodriguez v Kimco Centereach 605, 298 AD2d 571; Lindeman v Vecchione Constr. Corp., 275 AD2d 392). In opposition, the plaintiff failed to raise a triable issue of fact.
In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact ( see Rodriguez v Kimco Centereach 605, 298 AD2d 571; Larussa v Shell Oil Co., 283 AD2d 403; Werner v Neary, 264 AD2d 731). The expert affidavit submitted in opposition to the motion merely alleged that the application of the paint to the floor made it inherently slippery, which was insufficient to raise a triable issue of fact ( see Lindeman v Vecchione Constr. Corp., 275 AD2d 392; Rodriguezv Kimco Centereach 605, supra; Mroz v Ella Corp., 262 AD2d 465). The plaintiff also failed to raise a triable issue of fact as to whether the arrangement of furniture in the room proximately caused her to slip and fall ( see generally Alvarez v Prospect Hosp., 68 NY2d 320).
In opposition to the defendants' motion, the plaintiff failed to raise a triable issue of fact as to whether, at the time of her accident, the door was defective and the defendants had actual or constructive notice of this condition. Contrary to the plaintiffs contention, a defective condition is not established merely because the door closed with sufficient force to sever the tip of the plaintiffs finger ( see Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 561; Hunter v Riverview Towers, 5 AD3d 249, 250). Also, the opinion of the plaintiffs expert engineer that the left door closed too quickly and therefore was defective, was conclusory and speculative as there was no evidence that the condition of the door that the expert inspected two years after the accident was the same as it was at the time of the accident ( see Cruz v Deno's Wonder Wheel Park, 297 AD2d 653; Mroz v Ella Corp., 262 AD2d 465, 466; Chambers v Roosevelt Union Free School Dist., 260 AD2d 594, 594-595). Moreover, even if the plaintiffs expert is credited with establishing a defective condition of the door, the complaint is subject to dismissal as the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the defect ( see Joyeeta v Trump Mgt., Inc., 8 AD3d 351 , citing Gordon v American Museum of Natural History, 67 NY2d 836).
We agree with defendant that Supreme Court erred in denying its motion for summary judgment seeking dismissal of the complaint. Defendant established its entitlement to judgment as a matter of law by demonstrating that, immediately after plaintiff's accident, there was no defective or dangerous condition on the floor ( see Zalko v. Sunrise Adult Health Care Ctr., 7 AD3d 616, 617; Lincoln v. Laro Serv. Sys., 1 AD3d 487). Although defendant submitted evidence establishing that third parties told plaintiffs that the floor was slippery, that does not establish a basis for liability inasmuch as, "in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence" ( Mroz v. Ella Corp., 262 AD2d 465, 466; see Kruimer v. National Cleaning Contrs., 256 AD2d 1; Drillings v. Beth Israel Med. Ctr., 200 AD2d 381). Once defendant established its entitlement to judgment as a matter of law, the burden then shifted to plaintiffs to raise a triable issue of fact to defeat the motion ( see generally Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Plaintiffs failed to do so.
In opposition to the defendants' prima facie showing of entitlement to summary judgment, the plaintiffs submitted the affidavit of their engineering expert who opined that the friction coefficient of the floor tiles, when wet, created an "unusually dangerous" slippery condition. The expert, however, essentially concluded that the tiles were slippery due to their smoothness, which is not an actionable defect ( see Murphy v. Conner, 84 NY2d 969, 971-972; Rodriguez v. Kimco Centereach 605, 298 AD2d 571; Mroz v. Ella Corp., 262 AD2d 465). Nor was there any evidence that the defendants created the condition or had actual or constructive notice that the floor was unusually slippery when wet, and the plaintiffs failed to come forward with sufficient evidence in opposition to the motion to raise an issue of fact as to notice ( see Rodriguez v. Kimco Centereach 605, supra at 572; Collins v. Mayfair Super Mkts., Inc., 13 AD3d 330). Moreover, the plaintiffs' argument that the defendants created the dangerous condition by installing a water fountain in the bathroom is without merit since it is unsupported by evidence that the fountain was the source of the water on the bathroom floor.