Goldin v. Riverbay Corporation

• Decision Date: 12 November 2009
• Docket Number: 1434.
• Citation: 889 N.Y.S.2d 557,67 A.D.3d 489,2009 NY Slip Op 08137
• Parties: ISAAK GOLDIN, Respondent, v. RIVERBAY CORPORATION, Appellant, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

67 A.D.3d 489

889 N.Y.S.2d 557

2009 NY Slip Op 08137

ISAAK GOLDIN, Respondent, v. RIVERBAY CORPORATION, Appellant, et al., Defendant. (And a Third-Party Action.)

1434.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 12, 2009.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered January 13, 2009, which denied defendant-appellant's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint and all cross claims and counterclaims as against Riverbay Corporation.

Plaintiff claims that he sustained personal injuries when he fell on a dangerously slippery hardwood floor in an apartment in Co-op City owned by his friend, defendant Razhanskiy. Defendant-appellant Riverbay, which does maintenance work in Co-op City, had done restoration work in the apartment about two weeks before Razhanskiy moved in and about three weeks before plaintiff's accident, consisting of, among other things, installing a new hardwood floor and cleaning it with paste wax.

That a floor is slippery by reason of its smoothness or polish does not give rise to an inference of negligence; in addition, there must be proof of the negligent application of wax or polish (Aguilar v Transworld Maintenance Servs., 267 AD2d 85 [1999], lv denied 94 NY2d 762 [2000]). Riverbay made a prima facie showing that it did not negligently apply wax or polish with the testimony of its supervisor of maintenance that the floor was waxed and buffed once in accordance with normal procedures before a new tenant moves in, that he never noticed wood floors like this one to be slippery after the application of paste wax, and that he never received any complaints from anyone concerning the slipperiness of the wood floors. Plaintiff's deposition testimony that he fell because "the floor was very smooth, like a mirror," but otherwise dry and free of debris, does not constitute evidence of the negligent application of floor wax (see Purcell v York Bldg. Maintenance Corp., 57 AD3d 210 [2008]; Kudrov v Laro Servs. Sys., Inc., 41 AD3d 315, 315 [2007]), and plaintiff's claim that the floor was slippery because too many layers of wax were applied is speculative. Plaintiff did not testify that after he fell his clothes were covered with wax, which would have been some evidence of an overwaxed or negligently-applied wax condition (see Panagakos v Greek Archdiocese of N. &...