| Henry v Devonshire Tire Co. |
| 2008 NY Slip Op 02965 [50 AD3d 638] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Lester Henry, Appellant, v Devonshire Tire Co., DoingBusiness as 390 Riverdale Avenue Corp., Respondent. |
—[*1] Camacho Mauro Mulholland, LLP, New York, N.Y. (Kathleen M. Mulholland and SuzanneM. Lodge of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Giacomo, J.), entered February 14, 2007, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action seeking damages for injuries sustained when he fellfrom a ladder, based upon common-law negligence and alleged violations of the Labor Law.However, the plaintiff subsequently withdrew all Labor Law claims and proceeded solely uponthe cause of action alleging common-law negligence.
In support of its motion for summary judgment the defendant demonstrated its entitlement tojudgment as a matter of law and, in opposition thereto, the plaintiff failed to raise a triable issueof fact (see Lundquist v Ditmas Realty Co., 230 AD2d 830 [1996]). Indeed, on appeal,the plaintiff, in effect, concedes that the Supreme Court properly dismissed the common-lawnegligence claim. Instead, the plaintiff seeks to raise a new, unpleaded theory of liability.However, inasmuch as the plaintiff failed to raise said theory before the Supreme Court, it isimproperly raised for the first time on appeal and thus will not be addressed (see Stern v 522Shore Rd. Owners, 237 AD2d 277 [1997]; Gordon v Hong, 126 AD2d 514 [1987]).[*2]
Accordingly, the defendant was entitled to summaryjudgment dismissing the complaint (see generally Alvarez v Prospect Hosp., 68 NY2d320 [1986]). Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.