KOCIECKI v. (and a third-party action).

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

Darius KOCIECKI, respondent, v. EOP-MIDTOWN PROPERTIES, LLC, defendant, Paul, Hastings, Janofsky & Walker, LLP, appellant (and a third-party action).

Decided: October 27, 2009

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and L. PRISCILLA HALL, JJ. Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for appellant. Law Offices of Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for respondent.

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 was for 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 that branch of the motion of the defendant Paul, Hastings, Janofsky & Walker, LLP, which was for summary judgment dismissing the complaint insofar as asserted against it is granted.

 The plaintiff allegedly slipped while descending a marble staircase in premises leased by the defendant Paul, Hastings, Janofsky & Walker, LLP (hereinafter the defendant).   The plaintiff stated, during his deposition, that the staircase was free of any foreign substance or cracks.   “[I]n the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence” (Mroz v. Ella Corp., 262 A.D.2d 465, 466, 692 N.Y.S.2d 156), and the defendant submitted evidence sufficient to establish its entitlement to judgment as a matter of law (see Murphy v. Conner, 84 N.Y.2d 969, 622 N.Y.S.2d 494, 646 N.E.2d 796;   German v. Campbell Inn, 37 A.D.3d 405, 829 N.Y.S.2d 631;  Palermo v. Roman Catholic Diocese of Brooklyn, N.Y., 20 A.D.3d 516, 799 N.Y.S.2d 248;   Rodriguez v. Kimco Centereach 605, 298 A.D.2d 571, 749 N.Y.S.2d 543;   Lindeman v. Vecchione Constr. Corp., 275 A.D.2d 392, 712 N.Y.S.2d 594).   In opposition, the plaintiff failed to raise a triable issue of fact.   The plaintiff's contention that the staircase 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 A.D.3d 798, 800, 839 N.Y.S.2d 162;  Mainline Elec. Corp. v. Pav-Lak Indus., Inc., 40 A.D.3d 939, 939-940, 836 N.Y.S.2d 294).   In any event, Administrative Code § 27-375(h) is not applicable to this staircase since it did not serve as a required exit from the building (see Administrative Code §§ 27-232, 27-375;  Schwartz v. Hersh, 50 A.D.3d 1011, 856 N.Y.S.2d 640;  Dooley v. Vornado Realty Trust, 39 A.D.3d 460, 835 N.Y.S.2d 237;   Weiss v. City of New York, 16 A.D.3d 680, 681-682, 792 N.Y.S.2d 530;   Walker v. 127 W. 22nd St. Assoc., 281 A.D.2d 539, 722 N.Y.S.2d 250).

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