ARAUJO v. BROOKLYN MARTIAL ARTS ACADEMY

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

Optaciano ARAUJO, Jr., etc., et al., Respondents, v. BROOKLYN MARTIAL ARTS ACADEMY, Appellant, et al., Defendants.

Decided: April 28, 2003

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, SANDRA L. TOWNES, and REINALDO E. RIVERA, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Glen Feinberg of counsel), for appellant. Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Brooklyn Martial Arts Academy appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated October 2, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

The infant plaintiff, a student at the defendant Brooklyn Martial Arts Academy (hereinafter BMAA), allegedly was injured when he slipped and fell while descending the interior stairs from the second floor in a building owned by Grafstein Associates.   Grafstein Associates leased the building to 5817 Food Corp., which subleased the second floor of the building to BMAA. BMAA moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it neither created nor had actual or constructive notice of the alleged dangerous condition, i.e., a wet spot on the stairs.   In opposition to the prima facie demonstration by BMAA of its entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 685 N.Y.S.2d 804).

 In opposition to the motion, the plaintiffs alleged for the first time that the infant plaintiff's injury was caused by a defective handrail on the stairway.   The Supreme Court improperly considered this contention, as “[a] plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion” (Winters v. St. Vincent's Med. Ctr. of Richmond, 273 A.D.2d 465, 711 N.Y.S.2d 892;  see Gustavsson v. County of Westchester, 264 A.D.2d 408, 693 N.Y.S.2d 241;  Alvarez v. Lindsay Park Hous. Corp., 175 A.D.2d 225, 572 N.Y.S.2d 357).

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