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

163
CA 15-01266
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


LAURA SALVANIA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

UNIVERSITY OF ROCHESTER, DEFENDANT-APPELLANT.


THE WOLFORD LAW FIRM LLP, ROCHESTER (JAMES S. WOLFORD OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (SAREER A. FAZILI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered March 30, 2015. The order, insofar as
appealed from, denied in part the motion of defendant for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she fell while trying to stand up from a
chair at defendant’s Strong Memorial Hospital (hospital). At the time
of the incident, plaintiff was visiting a patient and was asked by an
X ray technician to leave the room temporarily. Supreme Court denied
in part defendant’s motion for summary judgment seeking dismissal of
the complaint, and we affirm. In support of its motion, defendant
submitted the deposition testimony of plaintiff, who testified that “a
faulty chair” caused her to fall. When asked what was faulty about
the chair, plaintiff mentioned both a loose armrest on the chair and
the fact that a footrest of the chair came out when she began to stand
up. Defendant also submitted the deposition testimony of witnesses
who observed defects in the armrest and the footrest a day or two
after plaintiff’s fall.

     Defendant contends that plaintiff could only speculate that she
fell because of a loose armrest on the chair, rather than that she
fell when she merely tripped over the footrest, and that plaintiff may
not rely on any allegedly defective footrest in support of her
negligence cause of action because defendant did not have notice that
plaintiff would be relying on such a theory, but instead had notice
only of a loose armrest. We reject that contention. “It is well
settled that [a] plaintiff cannot defeat an otherwise proper motion
for summary judgment by asserting a new theory of liability for
                                 -2-                           163
                                                         CA 15-01266

negligence for the first time in opposition to the motion” (Flynn v
Haddad, 109 AD3d 1209, 1210 [internal quotation marks omitted]; see
Cannon v Amarante, 19 AD3d 1144, 1145). Here, however, plaintiff was
not relying on a new theory of liability for her negligence cause of
action (see Gilfus v CSX Transp., Inc., 79 AD3d 1671, 1672-1673). In
her complaint, plaintiff alleged that defendant was negligent in
“permitting a dangerous and defective condition within said premises,
namely an unsafe guest chair.” Plaintiff alleged in her second
supplemental bill of particulars that the chair “was in a state of
disrepair.” Although plaintiff specifically mentioned in the second
supplemental bill of particulars that the accident occurred when she
fell “as a result of an insecure and wobbly arm on the chair,” the
allegations in the complaint and second supplemental bill of
particulars that the chair was defective were sufficient to encompass
her theory that the chair’s footrest was defective (see Avery v
Rockwell Intl. Corp., 204 AD2d 1044, 1044; cf. Flynn, 109 AD3d at
1209-1210). In any event, even assuming, arguendo, that the defective
footrest was a new theory of liability, we conclude that there was no
surprise to defendant arising from plaintiff’s reliance on that theory
(see DiFabio v Jordan, 113 AD3d 1109, 1110-1111). Defendant was well
aware through the deposition testimony that the witnesses noticed a
problem with the footrest, and defendant’s attorney questioned them
extensively about it. Contrary to defendant’s contention, we conclude
that defendant did not establish as a matter of law that the cause of
plaintiff’s fall was speculative (see Dixon v Superior Discounts &
Custom Muffler, 118 AD3d 1487, 1488).

     Defendant also contended in support of its motion that it did not
have constructive notice of the allegedly defective chair. We reject
that contention. “To constitute constructive notice, a defect must be
visible and apparent and it must exist for a sufficient length of time
prior to the accident to permit a defendant’s employees to discover
and remedy it” (Gordon v American Museum of Natural History, 67 NY2d
836, 837). Defendant failed to establish as a matter of law that it
did not have constructive notice of the allegedly defective chair
prior to plaintiff’s fall. The affidavit of defendant’s employee did
not establish the reasonableness of defendant’s inspection practices
such that defendant was entitled to judgment as a matter of law (see
Catalano v Tanner, 23 NY3d 976, 977). The employee was not a member
of the department responsible for cleaning the patient rooms and,
moreover, he stated in conclusory fashion that workers clean the rooms
and inspect the chairs, and they were instructed to make a report if
they noticed a problem with a chair. Defendant therefore failed to
establish that it regularly inspected the chairs and actually did so
just prior to the accident. Even if there was a general policy of
inspecting chairs every time a room was cleaned, “defendant failed to
submit evidence establishing that the general policy was followed on
the day of plaintiff’s accident” (Johnson v Panera, LLC, 59 AD3d 1118,
1118).


Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
