        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
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                                                         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
