| Kociecki v EOP-Midtown Props., LLC |
| 2009 NY Slip Op 07801 [66 AD3d 967] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Darius Kociecki, Respondent, v EOP-Midtown Properties,LLC, Defendant, and Paul, Hastings, Janofsky & Walker, LLP, Appellant. (And a Third-PartyAction.) |
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In an action to recover damages for personal injuries, the defendant Paul, Hastings, Janofsky& Walker, LLP, appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Solomon, J.), dated July 15, 2008, as denied that branch of its motion which wasfor summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Paul, Hastings, Janofsky & Walker, LLP, which was forsummary judgment dismissing the complaint insofar as asserted against it is granted.
The plaintiff allegedly slipped while descending a marble staircase in premises leased by thedefendant Paul, Hastings, Janofsky & Walker, LLP (hereinafter the defendant). The plaintiffstated, during his deposition, that the staircase was free of any foreign substance or cracks. "[I]nthe absence of evidence of a negligent application of floor wax or polish, the mere fact that asmooth floor may be slippery does not support a cause of action to recover damages fornegligence" (Mroz v Ella Corp., 262 AD2d 465, 466 [1999]), and the defendantsubmitted evidence sufficient to establish its entitlement to judgment as a matter of law (seeMurphy v Conner, 84 NY2d 969 [1994]; German v Campbell Inn, 37 AD3d 405 [2007]; Palermo v Roman Catholic Diocese ofBrooklyn, N.Y., 20 AD3d 516 [2005]; Rodriguez v Kimco Centereach 605, 298AD2d 571 [2002]; Lindeman v Vecchione Constr. Corp., 275 AD2d 392 [2000]). Inopposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's contention that thestaircase 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 thisstaircase since it did not serve as a required exit from the building (see AdministrativeCode §§ 27-232, 27-375; Schwartz v Hersh, 50 AD3d 1011 [2008]; Dooley v Vornado Realty Trust, 39AD3d 460 [2007]; Weiss v City ofNew York, 16 AD3d 680, 681-682 [2005]; Walker v 127 W. 22nd St. Assoc.,281 AD2d 539 [2001]). Mastro, J.P., Dickerson, Eng and Hall, JJ., concur.