SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1249 

CA 12-00307 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.

 

 

SUZANNE K. SAVAGE, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

ANDERSON’S FROZEN CUSTARD, INC., 

DEFENDANT-APPELLANT, 

ET AL., DEFENDANTS.

 

GOLDBERG SEGALLA LLP, BUFFALO, GANNON, ROSENFARB, BALLETTI & DROSSMAN,

NEW YORK CITY (LISA L. GOKHULSINGH OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

STAMM LAW FIRM, WILLIAMSVILLE (MELISSA A. STADLER OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

 

Appeal from an order of the Supreme Court, Erie County (John F.

O’Donnell, J.), entered December 6, 2011 in a personal injury action. 

The order, insofar as appealed from, denied the motion of defendant

Anderson’s Frozen Custard, Inc. for summary judgment. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the motion of defendant

Anderson’s Frozen Custard, Inc. is granted and the amended and

supplemental complaint against it is dismissed. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained in an accident at a restaurant owned and

operated by Anderson’s Frozen Custard, Inc. (defendant). The accident

occurred when plaintiff, after ordering food, attempted to sit down in

a chair that slid out from beneath her, causing her to fall to the

floor. Plaintiff was helped to her feet by a friend and sat down

without incident in the same chair. She later went to the hospital

and was treated for injuries to her back and shoulder. The amended

and supplemental complaint (complaint) asserted claims against

defendant for negligence, failure to warn, and breach of the implied

warranty of fitness for a product’s intended purpose. The complaint

named other parties as defendants, including the chair’s distributor

and the contractor that sealed defendant’s concrete floor, which

plaintiff alleged was too slippery. Following discovery, defendants

separately moved and cross-moved, respectively, for summary judgment

dismissing all claims against them. According to Supreme Court’s

decision, plaintiff conceded at oral argument that two of the

defendants were not negligent, and the court granted the motion of a

third defendant, Alpha Contract Flooring, Inc. (Alpha), but the court
-2- 1249 

CA 12-00307 

denied defendant’s motion. The court determined that Alpha

established that the floor was not improperly sealed or “inherently

dangerous,” and that, in response, plaintiff failed to raise an issue

of fact. With respect to defendant’s motion, however, the court

stated that there “are obvious, material issues of fact that preclude

summary judgment with regard to [defendant].” The court did not

identify those issues of fact. We conclude that the court erred in

denying defendant’s motion. 

Defendant met its initial burden with respect to the negligence

and failure to warn claims by submitting evidence that the accident

was not attributable to a defect in the chair or the concrete floor

(see Azzaro v Super 8 Motels, Inc., 62 AD3d 525, 526; see also Zalko v

Sunrise Adult Health Care Ctr., 7 AD3d 616, 617; Portanova v Trump Taj

Mahal Assoc., 270 AD2d 757, 759, lv denied 95 NY2d 765). The evidence

established that the chair in question and many others like it had

been purchased new by defendant shortly before the accident, and that

they had been used on the recently sealed concrete floor for 17 days

prior to the accident. Defendant’s president testified at his

deposition that, during those 17 days, the restaurant was visited by

6,000 to 7,000 patrons, not one of whom had a problem sitting in the

chairs. 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” (NY PJI

2:91, Comment [F] at 624; see Mroz v Ella Corp., 262 AD2d 465, 466).

In response to defendant’s motion, plaintiff failed to raise a

triable issue of fact (see generally Zuckerman v City of New York, 49

NY2d 557, 562). 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. Although plaintiff submitted letters from two insurance agents

to the agent for defendant’s insurer tending to show that defendant

may have had notice that other similar “incidents” had previously

occurred at the restaurant, those letters constituted hearsay, which

may be considered in opposition to a motion for summary judgment only

where “it is not the only proof relied upon by the opposing party”

(Biggs v Hess, 85 AD3d 1675, 1676; see Zimbler v Resnick 72nd Street

Assoc., 79 AD3d 620, 621). Here, plaintiff offered no other

admissible evidence in opposition to defendant’s motion tending to

show that a dangerous condition existed in the restaurant or that

defendant was aware of such condition. 

Finally, we conclude that the court should have granted

defendant’s motion with respect to the claim for breach of the implied

warranty of fitness for a product’s intended purpose because defendant

established that it is “outside the manufacturing, selling, or

distribution chain” (Quinones v Federated Dept. Stores, Inc., 92 AD3d

931, 932; see Abato v Millar El. Serv. Co., 261 AD2d 873, 874), and

plaintiff failed to raise an issue of fact (see generally Zuckerman, 
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CA 12-00307 

49 NY2d at 562). 

Entered: November 16, 2012 Frances E. Cafarell

Clerk of the Court