Kociecki v. EOP-Midtown Properties, LLC

66 A.D.3d 967, 888 N.Y.S.2d 135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 2009
• Status: Published

Opinion

The plaintiff allegedly slipped while descending a marble staircase in premises leased by the defendant Paul, Hastings, Janofsky & Walker, LLP (hereinafter the defendant). The plaintiff stated, during his deposition, that the staircase was free of any foreign substance or cracks. “[I]n the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence” (Mroz v Ella Corp., 262 AD2d 465, 466 [1999]), and the defendant submitted evidence sufficient to establish its entitlement to judgment as a matter of law (see Murphy v Conner, 84 NY2d 969 [1994]; German v Campbell Inn, 37 AD3d 405 [2007]; Palermo v Roman Catholic Diocese of Brooklyn, N.Y., 20 AD3d 516 [2005]; Rodriguez v Kimco Centereach 605, 298 AD2d 571 [2002]; Lindeman v Vecchione Constr. Corp., 275 AD2d 392 [2000]). In opposition, the plaintiff failed,to raise a triable issue of fact. The plaintiffs contention that the staircase was in violation of Administrative Code of the City of New York § 27-375 (h) was improperly raised for the first time in opposition to the motion (see Medina v Sears, Roebuck & Co., 41 AD3d 798, 800 [2007]; Mainline Elec. Corp. v Pav-Lak Indus., Inc., 40 AD3d 939, 939-940 [2007]). In any event, Administrative Code § 27-375 (h) is not applicable to this staircase since it did not serve as a required exit from the building (see Administrative Code §§ 27-232, 27-375; Schwartz v Hersh, 50 AD3d 1011 [2008]; Dooley v Vornado Realty Trust, 39 AD3d 460 [2007]; Weiss v City of New York, 16 AD3d 680, 681-682 [2005]; Walker v 127 W. 22nd St. Assoc., 281 AD2d 539 [2001]). Mastro, J.E, Dickerson, Eng and Hall, JJ., concur.