Leon v. Mendonca

Appellate Division of the Supreme Court of New York

Leon v. Mendonca

7 A.D.3d 345, 775 N.Y.S.2d 864, 2004 N.Y. App. Div. LEXIS 6729

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 2004

StatusPublished

This text of 7 A.D.3d 345 (Leon v. Mendonca) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leon v. Mendonca, 7 A.D.3d 345, 775 N.Y.S.2d 864, 2004 N.Y. App. Div. LEXIS 6729 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 26, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs argument that defendants, as landlords, breached a general duty of care to keep their premises in safe condition, as [346]*346required by section 78 of the Multiple Dwelling Law, was expressly waived in plaintiff’s bill of particulars, and is improperly raised for the first time on appeal. Accordingly, we decline to consider it (see Aviles v Crystal Mgt., 253 AD2d 607, 608 [1998], lv denied 93 NY2d 804 [1999]). In any event, were we to consider this argument, we would find that even assuming, arguendo, defendants’ breach of a duty under the Multiple Dwelling Law, plaintiff, who would still be required to prove the elements of common-law negligence (id.), failed to defeat defendants’ showing of entitlement to summary judgment. Plaintiff did not raise a triable issue of fact as to whether his injuries were proximately caused by the allegedly hazardous condition created by a contractor hired by defendants (see Capraro v Staten Is. Univ. Hosp., 245 AD2d 256 [1997]). Moreover, no evidence was presented by plaintiff to counter defendants’ proof demonstrating that they lacked notice of the transitory condition. Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Williams, JJ.

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Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 26, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs argument that defendants, as landlords, breached a general duty of care to keep their premises in safe condition, as [346]*346required by section 78 of the Multiple Dwelling Law, was expressly waived in plaintiff’s bill of particulars, and is improperly raised for the first time on appeal. Accordingly, we decline to consider it (see Aviles v Crystal Mgt., 253 AD2d 607, 608 [1998], lv denied 93 NY2d 804 [1999]). In any event, were we to consider this argument, we would find that even assuming, arguendo, defendants’ breach of a duty under the Multiple Dwelling Law, plaintiff, who would still be required to prove the elements of common-law negligence (id.), failed to defeat defendants’ showing of entitlement to summary judgment. Plaintiff did not raise a triable issue of fact as to whether his injuries were proximately caused by the allegedly hazardous condition created by a contractor hired by defendants (see Capraro v Staten Is. Univ. Hosp., 245 AD2d 256 [1997]). Moreover, no evidence was presented by plaintiff to counter defendants’ proof demonstrating that they lacked notice of the transitory condition. Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Williams, JJ.

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Bluebook (online)

7 A.D.3d 345, 775 N.Y.S.2d 864, 2004 N.Y. App. Div. LEXIS 6729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leon-v-mendonca-nyappdiv-2004.

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