Summary
In Fresh Direct, the court made its decision based on the standard imposed on a motion to dismiss, which is much broader than the summary judgment standard imposed in the instant case.
Summary of this case from Dinosaur Sec., L.L.C. v. Townsend Analytics, Ltd.Opinion
2002-09405
Argued October 23, 2003.
November 17, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis, J.), entered September 4, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.
Fine, Olin Anderman, LLP, Newburgh, N.Y. (Finkelstein Partners [James W. Shuttleworth III] of counsel), for appellant.
Martyn, Toher, Esposito, Martyn Adler, Mineola, N.Y. (Thomas M. Martyn of counsel), for respondent.
Before: SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
A defendant is entitled to judgment as a matter of law where the plaintiff is unable to identify any defect in the floor upon which he or she fell other than to describe it as smooth or shiny ( see Pizzi v. Bradlee's Div. of Stop Shop, 172 A.D.2d 504). Indeed, 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 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 ( see Lee v. Rite Aid of N.Y., 261 A.D.2d 368). Here, the defendant established a prima facie case of entitlement to judgment as matter of law by demonstrating that it neither created nor had notice of the alleged condition which caused the plaintiff to fall. The plaintiff failed to raise a triable issue of fact in opposition to the motion, since at her deposition she merely described the floor on which she fell as looking "wet," "shiny," and "waxed" to a high gloss. She did not remember her clothes feeling wet after she fell, nor did she observe any of the defendant's employees working in the area before her fall. The plaintiff's affidavit in opposition to the motion for summary judgment also was insufficient to raise a triable factual issue, inasmuch as it presented a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony ( see Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570; Bloom v. La Femme Fatale of Smithtown, 273 A.D.2d 187). Accordingly, the Supreme Court properly granted summary judgment in favor of the defendant dismissing the complaint.
S. MILLER, J.P., KRAUSMAN, TOWNES and COZIER, JJ., concur.