Diehr v. Association for Retarded Citizens of Chemung County

• Decision Date: 27 November 1996
• Citation: 650 N.Y.S.2d 396,233 A.D.2d 818
• Parties: Ruth V. DIEHR et al., Respondents, v. ASSOCIATION FOR RETARDED CITIZENS OF CHEMUNG COUNTY, Defendant-Appellant and Third-Party Plaintiff-Respondent, and Purolator Products Company, Third-Party Defendant-Appellant et al., Third-Party Defendants.
• Court: New York Supreme Court — Appellate Division

Page 396

650 N.Y.S.2d 396

233 A.D.2d 818

Ruth V. DIEHR et al., Respondents, v. ASSOCIATION FOR RETARDED CITIZENS OF CHEMUNG COUNTY Defendant-Appellant and Third-Party Plaintiff-Respondent and Purolator Products Company, Third-Party Defendant-Appellant et al., Third-Party Defendants.

Supreme Court, Appellate Division Third Department.

Nov. 27, 1996.

Sayles, Evans, Brayton, Palmer & Tifft (Stephen M. Proudfoot, of counsel), Elmira, third-party defendant-appellant.

Levene, Gouldin & Thompson (Cynthia A.K. Manchester, of counsel), Binghamton, for respondent-appellant.

Ziff, Weiermiller & Hayden (Christine Chalk-Meier, of counsel), Elmira, for respondents.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from an order of the Supreme Court (Ellison, J.), entered December 19, 1995 in Chemung County, which (1) denied the motion of defendant for summary judgment dismissing the complaint, and (2) denied the cross motion of third-party defendant Purolator Products Company for summary judgment dismissing the third-party complaint against it.

This action arises out of injuries sustained by plaintiff Ruth V. Diehr (hereinafter Diehr) at the offices of third-party defendant Purolator Products Company on January 2, 1992. Diehr, a Purolator employee, allegedly slipped and fell on a newly waxed floor, fracturing her left femur. The Purolator plant had been closed for several days during the holidays, and Purolator had retained the services of defendant to strip and wax the floors of the facility while the facility was closed. Plaintiff's fall occurred in a first-floor hallway at approximately 10:00 A.M. on the first working day after the floor was stripped and waxed. In her complaint, plaintiff alleged, inter alia, that defendant had applied the wax in a negligent fashion, causing the floor to become slippery and unsafe for use.

Defendant moved for summary judgment and Purolator cross-moved for summary judgment. Supreme Court denied defendant's motion for summary judgment, concluding that plaintiffs had raised a question of fact as to whether the wax was properly applied. The court granted Purolator's cross motion for dismissal of the third-party complaint on the grounds that there was no evidence that Purolator exercised any control over the manner in which the job was performed and no evidence that Purolator had actual or constructive notice of any dangerous condition in the hallway prior to Diehr's fall. Defendant moved to reargue and/or renew, which motion was granted. Upon reargument, Supreme Court adhered to its prior decision denying defendant's motion for summary judgment, but this time denied Purolator's cross motion for summary judgment as well. The court concluded that a question of fact existed as to whether the poor condition of the floor contributed to Diehr's accident. Defendant and Purolator appeal.

Supreme Court properly concluded that questions of fact exist as to whether the floor finish was applied in a negligent manner. "That a floor is slippery * * * does not give rise to a cause of action for negligence absent evidence of a negligent application of wax or polish" (Yaroschak v. Suffern Window Cleaning Co., 174 A.D.2d 887, 888, 571 N.Y.S.2d 353; see, Pizzi v. Bradlee's Div. of Stop & Shop, 172 A.D.2d 504, 505-06, 567 N.Y.S.2d 852). In this case, the record reveals a triable issue of fact as to whether defendant's buffing of the floor upon which Diehr fell created a dangerous condition (see, Manning v. New York Tel. Co., 157 A.D.2d 264, 266, 555 N.Y.S.2d 720).

There is evidence that the floor upon which Diehr fell was very dirty. One of the two men who stripped and waxed the floor testified that he had used a machine to heavily buff that portion of the floor upon which Diehr fell. Plaintiffs' expert, who has a background in polymers technology, stated that it was not proper procedure to buff a floor in a dirty condition because the heat of the buffer would cause the oil, dirt and grease trapped in the floor tiles to migrate to the surface, where they could form a thin film that would make the floor slick. There was also testimony in the record from an employee of third-party defendant S.C. Johnson and Son Inc. to the effect that the wax must have been properly applied because the record indicates that the floor was shiny at the time of Diehr's fall and there were no noticeable streaks or blotches. However, we find that the disagreement between these experts merely creates a question of...