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

991
CA 13-00413
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


PATRICIA FLYNN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MIKHAEL N. HADDAD, DEFENDANT-RESPONDENT.


ELLIOTT, STERN & CALABRESE, LLP, ROCHESTER (DAVID S. STERN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (ELISE L. CASSAR OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered May 11, 2012 in a personal injury action. The
order granted the motion of defendant for summary judgment dismissing
the complaint.

     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 slipped and fell immediately after
descending the single step that led into defendant’s garage. In her
complaint and bill of particulars, plaintiff alleged that the premises
were defective in that the garage floor was painted with a paint that
created an unreasonably slippery surface.

     Supreme Court properly granted defendant’s motion seeking summary
judgment dismissing the complaint. “ ‘[I]n the absence of evidence of
a negligent application of floor wax or polish [or other substance],
the mere fact that a smooth floor may be slippery does not support a
cause of action to recover damages for negligence’ ” (Ciccarelli v
Cotira, Inc., 24 AD3d 1276, 1276; see Waiters v Northern Trust Co. of
N.Y., 29 AD3d 325, 326-327; see generally Murphy v Conner, 84 NY2d
969, 971). In support of the motion, defendant submitted his
deposition testimony, wherein he testified that he painted the garage
floor 8 to 10 years prior to the accident with a paint that he
believed gave the floor a nonslip finish. He further testified that,
prior to the accident, no one ever slipped and fell on the garage
floor; no one ever told him that the floor was slippery; and he did
not detect that the floor was slippery. Defendant thus established as
a matter of law that he did not apply the paint in a negligent manner,
and plaintiff failed to raise a triable issue of fact (see Walsh v
Super Value, Inc., 76 AD3d 371, 374-377).
                                 -2-                           991
                                                         CA 13-00413

     In opposition to the motion, plaintiff raised for the first time
the theory that she fell due to a defect in the step, i.e., it was too
high and threw off her balance. It is well settled that “ ‘[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’ ” (Marchetti v East Rochester
Cent. Sch. Dist., 26 AD3d 881, 881; see Mullaney v Royalty Props.,
LLC, 81 AD3d 1312, 1313; Rumyacheva v City of New York, 36 AD3d 790,
790-791; Forester v Golub Corp., 267 AD2d 526, 527). Plaintiff may
therefore not rely on that theory to defeat defendant’s entitlement to
summary judgment (see Rodriguez v Board of Educ. of the City of
N.Y., 107 AD3d 651, 651; Taylor v Jaslove, 61 AD3d 743, 744-745;
Wilson v Prazza, 306 AD2d 466, 467).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
