Pellicane v. Lambda Chi Alpha Fraternity, Inc.

228 A.D.2d 569, 644 N.Y.2d 769, 644 N.Y.S.2d 769, 1996 N.Y. App. Div. LEXIS 7095

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1996
• Status: Published

Opinion

The plaintiff was a member of the defendant Theta Upsilon Zeta of Lambda Chi Alpha (hereinafter the local chapter), the local chapter of the codefendant Lambda Chi Alpha Fraternity, Inc. (hereinafter the national fraternity). The plaintiff was injured when he stepped on a nail protruding from a floor board that had been placed on a pile of debris in the backyard of the fraternity house by a member of the local chapter during renovation of the kitchen floor. The renovation was performed solely by members of the local chapter. The plaintiff commenced this action against the national fraternity and local chapter to recover damages for personal injuries sustained when he stepped on the nail.

On a motion for summary judgment, once the defendant has made a prima facie showing that the cause of action has no merit, the burden shifts to the plaintiff to lay bare whatever evidence it may have to show that issues of fact exist (see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 968). The plaintiffs contention that the national fraternity was liable for the negligence of the member of the local chapter under the theories of agency and respondeat superior is unpreserved for appellate review as such arguments were not raised before the Supreme Court (see, Matter of Allstate Ins. Co. v Bieder, 212 AD2d 693, 694; Miller Org. v Vasap Constr. Corp., 184 AD2d 763, 764).

The cause of action asserted against the local chapter was also properly dismissed as there was no duty to warn the plaintiff against the obvious potential danger presented by the pile of debris from the renovation project (see, Jackson v Supermarkets Gen. Corp., 214 AD2d 650; Wilhouski v Canon U.S.A., 212 AD2d 525). The plaintiff participated in and supervised the renovation project and was fully aware of the existence of the pile of debris in the backyard.

The plaintiffs remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., O’Brien, Joy and Goldstein, JJ., concur.