        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

344
CA 15-01412
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


ROMA M. MANDZYK, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MANOR LANES AND MANOR LANES II, INC.,
DEFENDANTS-RESPONDENTS.


GIBSON MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL SULLIVAN OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Jeremiah
J. Moriarty, III, J.), entered December 3, 2014. The order granted
the motion of defendants for summary judgment, denied the cross motion
of plaintiff for partial summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendants’ motion in part
and reinstating the first cause of action and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that she sustained as a result of her slip and fall while
bowling at premises allegedly owned by defendants. Supreme Court
granted defendants’ motion for summary judgment dismissing the
complaint and denied plaintiff’s cross motion for partial summary
judgment on the issue of defendants’ negligence in maintaining the
premises, and plaintiff appeals. The court properly granted that part
of defendants’ motion with respect to the cause of action sounding in
private nuisance, a theory that has no applicability to this case (see
generally Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61,
66; Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570,
rearg denied 42 NY2d 1102). The court also properly denied
plaintiff’s cross motion for partial summary judgment.

     We conclude, however, that the court erred in granting
defendants’ motion with respect to the cause of action for negligence,
and we modify the order accordingly. In granting that part of
defendants’ motion, the court agreed with defendants that they were
entitled to judgment because plaintiff could not identify the cause of
her fall (see Nolan v Onondaga County, 61 AD3d 1431, 1432). That was
error. “Although a defendant may establish its prima facie
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                                                         CA 15-01412

entitlement to judgment as a matter of law by submitting evidence that
the plaintiff cannot identify the cause of his or her fall without
engaging in speculation . . . , we conclude that defendant[s] failed
to meet that burden here” (Swietlikowski v Village of Herkimer, 132
AD3d 1406, 1407 [internal quotation marks omitted]). In any event,
and assuming arguendo that defendants met their initial burden, we
conclude that plaintiff raised a triable issue of fact concerning the
existence of the alleged defect, i.e., the presence of oil on the
approach to the lane, and concerning whether defendants affirmatively
caused or created that defect or acquired actual or constructive
notice of such defect in time to remedy it or warn plaintiff about it
(see Johnson v Transportation Group, Inc., 27 AD3d 1135, 1136; see
generally O’Neil v Holiday Health & Fitness Ctrs. of N.Y., 5 AD3d
1009, 1009-1010; Atkinson v Golub Corp. Co., 278 AD2d 905, 905-906).
Here, plaintiff testified at her deposition that she had seen beads of
oil on her bowling ball before she fell, and that she fell in the area
in which she released her bowling ball. Further, the bowling alley
manager testified at his deposition that beads of oil should not
accumulate on the ball, and that their existence might indicate
excessive oiling of the lanes. He further testified that the lanes
had been recently oiled, and that the oiling machine could drip oil on
the approach, thereby necessitating that the oil be wiped up with a
rag. Finally, the accident report, which was prepared by the bowling
alley manager within 15 or 20 minutes of the accident, recited that
plaintiff had “slipped on oil.”

     We do not address defendants’ contention that defendant Manor
Lanes II, Inc. is entitled to summary judgment on the ground that it
played no part in the ownership or operation of the bowling alley.
That contention is advanced for the first time on appeal and therefore
is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d
984, 985).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
