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Marku v. 33 S & P Realty Corp.

251 A.D.2d 633 Court N.Y. App. Div. Decision date 1998-06-29 English

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p. 633
Virko Marku et al., Appellants, v 33 S & P Realty Corp., Respondent.
[676 NYS2d 206]

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated July 25, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff Virko Marku was injured when she fell down a staircase on premises owned by the defendant. The defendant established its prima facie entitlement to summary judgment dismissing the complaint as the plaintiffs’ deposition testimony failed to show that there was an unsafe condition on the stairs which was created by the defendant or of which it had actual or constructive notice (see, Kraemer v K-Mart Corp., 226 AD2d 590 ).

In opposition to the defendant’s motion, the plaintiffs contend that there are triable issues of fact with respect to their claim that the defendant created a dangerous condition by waxing the stairs. “Where a dangerous condition has been created by

p. 634
the defendant itself, such constitutes actual notice sufficient to establish a prima facie case” (Zino v City of New York, 111 AD2d 847 , 848). The deposition testimony relied upon by the plaintiffs does not, however, establish that wax had been recently applied to the stairs. In any event, a claim that the stairs were slippery due to wax does not give rise to a cause of action or an inference of negligence in the absence of evidence that the wax was negligently applied (see, e.g., Pagan v Local 23-25 Intl. Ladies Garment Workers Union, 234 AD2d 37 ; Kraemer v K-Mart Corp., supra; Sapinkopf v Marriott Host, 224 AD2d 512 ; Calabrese v B.P.O. Elks Lodge #744, 215 AD2d 345 ; Gootman v Village of Haverstraw, 200 AD2d 829 ). Since the plaintiffs’ submissions failed to raise a triable issue of fact, the defendant was entitled to summary judgment. Pizzuto, J. P., Santucci, Altman and Luciano, JJ., concur.

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