Galler v. Prudential Insurance Co. of America

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs, although on somewhat different reasoning. Silva v American Irving Sav. Bank (31 AD2d 620, affd without opn 26 NY2d 727), on which it relied, was an action against the building owner; the cleaning contractor was not a party defendant. We affirmed in that case not on the basis that the proof was insufficient to establish negligent waxing, but because there was insufficient proof of notice, actual or constructive, on the part of the owner (see Madrid v City of New York, 42 NY2d 1039; and Golding v Mauss, 27 NY2d 580, which revd on dissent at Appellate Division, notwithstanding the citation of Silva by the majority in that court as to the sufficiency of the proof). A prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor (Conroy v Montgomery Ward & Co., 300 NY 540, affg without opn 275 App Div 980; *639 Davis v Kresge Co., 267 App Div 850, mot for lv to app den 292 NY 723; 1 PJI 2:91, p 273). Here, however, the evidence was insufficient to establish prima facie that what plaintiff slipped on was a wax residue (see Rempe v Betts, 8 NY2d 905, affg without opn 8 AD2d 738). Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur. On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.