Denny v. New York State Industries for the Disabled , 737 N.Y.S.2d 674 ( 2002 )

—Mercare, J.P.

Appeal from an order of the Supreme Court (Teresi, J.), entered July 2, 2001 in Albany County, which granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff brought this action to recover for injuries she sustained at approximately 8:20 a.m. on July 31, 1998 at the work place of her employer, the Department of Taxation and Finance, when she slipped on an office building corridor and fell on her left knee, fracturing her patella. The claim of liability against defendant is predicated on its “full-service” contract with the employer for the performance of janitorial services. Following joinder of issue, defendant moved for summary judgment, which was granted by Supreme Court based upon its conclusion that defendant owed plaintiff no duty of care. Plaintiff appeals.

We affirm. Even assuming, without concluding, that defendant owed a duty of care to plaintiff, we agree with defendant’s alternative contention that it is entitled to summary judgment based upon plaintiff’s demonstrated inability to identify the cause of her accident. At her deposition, plaintiff testified that she was en route from her work cubicle to the ladies’ room and, at a point approximately one foot from the archway leading from the corridor to the ladies’ room, she “started to slide,” tried to catch herself and landed on her knee. Notably, plaintiff testified that she did not at the time of the accident or at any other time “make any observations as to the condition of the floor in the area where [she] fell.”

In opposition to the summary judgment motion and now on appeal, it is plaintiff’s position that she slipped on the oily residue of a salad dressing spill that had been present the previous day and had caused her coworker, Victoria Moore, to slip. Fatally, the record provides no competent evidence to support the assumption that plaintiff and Moore slipped at precisely the same spot. Although Moore indicates in an affidavit that she “was shown where [plaintiff] slipped and fell and it was the exact same spot on the corridor floor where the salad oil had been spilled the day before,” she gives no indication as to who showed her the location of plaintiff’s fall or the source of that person’s information. Similarly, plaintiff’s opinion, advanced for the first time in opposition to the summary judgment motion, that it must have been a slippery, oily substance that caused her to slip “because [her] foot shot out from under [her] as if [she] was wearing roller blades on that foot rather than [her] shoe,” is based on nothing more than speculation. As this Court has repeatedly held, “ ‘conclusions based upon surmise, conjecture, speculation or assertions are without probative value’ ” (Dapp v Larson, 240 AD2d 918, 919, quoting Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699; see, Whiting v Bella Vista Dev. Corp., 267 AD2d 662, 663).

Peters, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.