Eichelbaum v Douglas Elliman, LLC

2008 NY Slip Op 04916

Decided on June 3, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 3, 2008
Lippman, P.J., Mazzarelli, Williams, Sweeny, Acosta, JJ.
3782 117428/05






Alan M. Sanders, LLC, Carle Place (David M. Schwarz of
counsel), for appellant.
Law Offices of Bruce A. Lawrence, Brooklyn (Eric A.
Schnittman of counsel), for Douglas Elliman, LLC, respondent.
Hoey, King, Toker & Epstein, New York (Edgar Matos of
counsel), for Daniel Gale Agency, Inc., respondent.
Kelly, Rode & Kelly, LLP, Mineola (John W. Hoefling of
counsel), for Michael and Sara Craig-Scheckman, respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered June 11, 2007, which granted defendants' respective motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to raise an issue of fact responsive to defendants real estate brokers' prima facie showing that their only connection to the house in which plaintiff fell was to show it to prospective buyers, such as plaintiff, and that they therefore owed plaintiff no duty to make the house safe (see Pirie v Krasinski, 18 AD3d 848, 850 [2005], Meyer v Tyner, 273 AD2d 364, 365 [2000]). Defendants owners were properly granted summary judgment in the absence of evidence — responsive to their prima facie showing that the pre-finished shiny wood floor had never been waxed or polished after installation and was mopped with only a small amount of water — that the floor was slippery for reasons other than its inherent smoothness (see Murphy v Conner, 84 NY2d 969, 971-972 [1994]). For the same reason it does not avail plaintiff that defendants may have had notice of the inherent slippery nature of the floor, i.e., any danger due to smoothness would have been as apparent to her as to defendants (see DeMartini v Trump 767 [*2]5th Ave., LLC, 41 AD3d 181, 182 [2007]), it does not avail plaintiff to argue that defendants created or exacerbated the danger by requesting her to remove her shoes on entering the house.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 3, 2008

CLERK