Macri v. Fluor Enters., Inc.

Opinion

Macri v Fluor Enters., Inc.

2026 NY Slip Op 05301

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

Leonard Macri, appellant-respondent,

v

Fluor Enterprises, Inc., et al., respondents-appellants, Fluor Corporation, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2020-04361, (Index No. 60904/17)

Colleen D. Duffy, J.P.

Paul Wooten

Laurence L. Love

Susan Quirk, JJ.

Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino of counsel), for appellant-respondent.

The Law Offices of Christopher P. Di Giulio, P.C., New York, NY (William Thymius of counsel), for respondents-appellants and respondent Fluor Corporation.

Kornfeld, Rew, Newman & Simeone, Suffern, NY (William S. Badura and Scott Dow of counsel), for respondent EMBE Home Solutions, Inc., also known as Certa Pro Painters.

In an action to recover damages for personal injuries, the plaintiff appeals, and the

[*1]

DECISION & ORDER

defendants Fluor Enterprises, Inc., and International Business Machines Corporation cross-appeal, from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated April 28, 2020. The order, insofar as appealed from, granted those branches of the separate motions of the defendant EMBE Home Solutions, Inc., also known as Certa Pro Painters, and the defendants International Business Machines Corporation, Fluor Enterprises, Inc., and Fluor Corporation which were for summary judgment dismissing the complaint insofar as asserted against each of them. The cross-appeal was deemed dismissed pursuant to 22 NYCRR 1250.10(a).

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendant EMBE Home Solutions, Inc., also known as Certa Pro Painters, which was for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting those branches of the motion of the defendants International Business Machines Corporation, Fluor Enterprises, Inc., and Fluor Corporation which were for summary judgment dismissing the complaint insofar as asserted against the defendants International Business Machines Corporation and Fluor Enterprises, Inc., and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants appearing separately and filing separate briefs.

The plaintiff commenced this action against the defendants, EMBE Home Solutions, Inc., also known as Certa Pro Painters (hereinafter Certa Pro), International Business Machines Corporation (hereinafter IBM), Fluor Enterprises, Inc. (hereinafter Fluor Enterprises), and Fluor Corporation (hereinafter together with Fluor Enterprises, the Fluor defendants) to recover damages [*2]for personal injuries he alleged he sustained in October 2014 when he slipped and fell while walking on a loading dock (hereinafter the loading dock) at a facility owned by IBM and operated by Fluor Enterprises, a subsidiary of Fluor Corporation.

In September 2014, Certa Pro installed a new flooring system in the loading dock of the facility. At the direction of IBM, Certa Pro installed a flooring system that was marketed by its manufacturer, Citadel Floor Finishing Systems (hereinafter Citadel), as meeting the minimum coefficient of friction required for public floors, and added additional nonslip material only in an area of the loading dock primarily used by IBM's chief executive officer. The plaintiff allegedly was injured when he slipped in an area of the loading dock which transitioned between the area treated with the additional nonslip material and the untreated area. The plaintiff alleged, among other things, that the defendants were negligent in failing to keep the floor surface of the loading dock in a reasonably safe condition, and that Certa Pro had failed to properly paint the loading dock floor, thereby creating a dangerous condition.

Certa Pro moved, and the Fluor defendants and IBM separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff opposed both motions. By order dated April 28, 2020, the Supreme Court, among other things, granted those branches of the separate motions.

"Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see id. at 140). "A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm" (Bruce v Edgewater Indus. Park, LLC, 169 AD3d 753, 754; see Espinal v Melville Snow Contrs., 98 NY2d at 140). "Where such a duty is alleged, a defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of" (Bruce v Edgewater Indus. Park, LLC, 169 AD3d at 754; see Jackson v Bethel A.M.E. Church, 192 AD3d 868, 870).

"A defendant may not be held liable for the application of 'wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge' that the product could render the floor dangerously slippery" (Faiella v Oradell Constr. Co., Inc., 171 AD3d 1013, 1014, quoting Walsh v Super Value, Inc., 76 AD3d 371, 372; see Union v Excel Commercial Maintenance, 185 AD3d 869, 869-870). "In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence" (Khaimova v Osnat Corp., 21 AD3d 401, 402; see Union v Excel Commercial Maintenance, 185 AD3d at 870; Kapoor v Randlett, 144 AD3d 984, 985).

In support of its motion, Certa Pro established, prima facie, that it did not create or launch an instrument of harm by negligently applying the Citadel flooring system to the loading dock floor where the plaintiff fell prior to the accident, and thus, that it did not owe the plaintiff a duty of care (see Union v Excel Commercial Maintenance, 185 AD3d at 870). Moreover, the evidence proffered in support of Certa Pro's motion established, prima facie, that it did not have actual, constructive, or imputed knowledge that the Citadel flooring system used could render the loading dock floor dangerously slippery or create a dangerous or defective condition (see Walsh v Super Value, Inc., 76 AD3d at 372; Hernandez v BP Am., Inc., 123 AD3d 1095, 1096).

In opposition, however, the plaintiff raised triable issues of fact. The plaintiff relied upon, among other things, affidavits of experts, who opined, based upon Citadel training materials, inter alia, that Certa Pro failed to properly apply nonslip aggregate, failed to properly test for slip resistance after the Citadel flooring system was installed, and created an unsafe condition by installing two different types of walking surfaces, which appeared identical, without an associated [*3]visual warning separating the two (see Westbay v Costco Wholesale Corp., 200 AD3d 935, 936).

IBM and Fluor Enterprises established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not know, or have reason to know, that the Citadel flooring system used by Certa Pro was or might be dangerously slippery when applied to the loading dock floor where the plaintiff fell, or know of any other accidents related to the application of the Citadel flooring system used at the premises prior to the plaintiff's fall (see Walsh v Super Value, Inc., 76 AD3d at 376-377). In opposition, however, the plaintiff raised a triable issue of fact as to whether IBM and Fluor Enterprises created a dangerous condition by directing Certa Pro to install two different walking surfaces on the same loading dock floor that were not visually distinct from each other (see id. at 377-378).

Accordingly, the Supreme Court should have denied that branch of Certa Pro's motion which was for summary judgment dismissing the complaint insofar as asserted against it and those branches of the motion of the Fluor defendants and IBM which were for summary judgment dismissing the complaint insofar as asserted against IBM and Fluor Enterprises.

The plaintiff's remaining contention, that Fluor Corporation failed to establish that it did not exercise dominion and control over its subsidiary, Fluor Enterprises, raised for the first time on appeal, is not properly before this Court (see Dolores v Grandpa's Bus Co., Inc., 189 AD3d 1539).

DUFFY, J.P., WOOTEN, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court