Opinion
March 9, 1987
Appeal from the Supreme Court, Nassau County (Velsor, J.).
Ordered that the order is affirmed, with costs.
We find unpersuasive the plaintiff's contention that the court of first instance should have disregarded his claim pursuant to General Obligations Law § 11-101 (the Dram Shop Act) and denied the motion for summary judgment due to the existence of factual issues which were raised concerning his alleged cause of action in negligence. We agree that the Supreme Court, Nassau County, properly resolved the Dram Shop Act claim against the plaintiff. Further, the record demonstrates that no cause of action sounding in negligence was asserted in the complaint, and the plaintiff twice averred in his bill of particulars that recovery was not being sought pursuant to a negligence theory. Since the plaintiff failed to raise the negligence argument at any point in the prior proceedings, he must be deemed to have waived consideration of the issue at the appellate level (see, Rentways, Inc. v. O'Neill Milk Cream Co., 308 N.Y. 342; Pastore v. Zlatniski, 122 A.D.2d 840; Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757). Thompson, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.