MEDINA v. SEARS ROEBUCK AND CO

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Supreme Court, Appellate Division, Second Department, New York.

Daisy MEDINA, appellant, v. SEARS, ROEBUCK AND CO., respondent.

Decided: June 26, 2007

WILLIAM F. MASTRO, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, and RUTH C. BALKIN, JJ. Richard H. Bliss, New York, N.Y., for appellant. Lynch Rowin, LLP, New York, N.Y. (Marc Rowin and Jennifer T. Chavez of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Nastasi, J.), entered November 22, 2005, which granted the defendant's motion for summary judgment dismissing the complaint and (2), as limited by her brief, from so much of an order of the same court entered February 6, 2006, as denied those branches of her motion which were for leave to renew and for leave to amend her bill of particulars.

ORDERED that the order entered November 22, 2005, is affirmed;  and it is further,

ORDERED that the order entered February 6, 2006, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiff allegedly slipped and fell on an uncovered ramp which connected the rooftop parking lot to a merchandise pickup area of the defendant's building.   The ramp was wet from rain which had started about 10 minutes before the accident.   The essence of the plaintiff's complaint, as set out in her original bill of particulars, was that the defendant was negligent in allowing the ramp to become wet due to the rain.

 In order to impose liability upon a defendant in a slip-and-fall case, there must be evidence tending to show the existence of a dangerous condition and that the defendant either created the defect or had actual or constructive notice of it.   The mere fact that the ramp became wet from the rain was insufficient to establish the existence of a dangerous condition (see Richardson v. Campanelli, 297 A.D.2d 794, 748 N.Y.S.2d 31;  Sadowsky v. 2175 Wantagh Ave., Corp., 281 A.D.2d 407, 721 N.Y.S.2d 665;  King v. New York City Tr. Auth., 266 A.D.2d 354, 698 N.Y.S.2d 328;  Patrick v. Cho's Fruit & Vegetables, 248 A.D.2d 692, 671 N.Y.S.2d 274;  see also Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Gentles v. New York City Tr. Auth., 275 A.D.2d 388, 712 N.Y.S.2d 875).

 The plaintiff's new theory of negligence, that the defendant created a defective condition in that the ramp was excessively sloped and lacked handrails in violation of the Administrative Code of the City of New York § 27-377, was alleged for the first time in opposition to the defendant's motion.   “While modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's submissions” (Comsewogue Union Free School Dist. v. Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523, 524, 790 N.Y.S.2d 220;  see Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 280, 413 N.Y.S.2d 309, 385 N.E.2d 1238;  Gold Connection Discount Jewelers v. American Dist. Tel. Co., 212 A.D.2d 577, 578, 622 N.Y.S.2d 740), here, the plaintiff's protracted delay in presenting the new theory of liability by way of a supplemental bill of particulars, served without leave of the court after the note of issue had been filed, warranted the Supreme Court's rejection of the argument (see Mainline Elec. Corp. v. Pav-Lak Industries, Inc., 40 A.D.3d 939, 836 N.Y.S.2d 294;  Comsewogue Union Free School Dist. v. Allied-Trent Roofing Sys., Inc., supra ).

The plaintiff's remaining contentions are without merit.

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