Opinion
3616.
Decided May 13, 2004.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 26, 2003, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Litman Litman, P.C., New York (Jeffrey E. Litman of counsel), for appellant.
Law offices of Robert P. Tusa, Yonkers (David Holmes of counsel), for respondents.
Before: Tom, J.P., Andrias, Sullivan, Ellerin, Williams, JJ.
Plaintiff's argument that defendants, as landlords, breached a general duty of care to keep their premises in safe condition, as required by § 78 of the Multiple Dwelling Law, was expressly waived in plaintiff's bill of particulars, and is improperly raised for the first time on appeal. Accordingly, we decline to consider it ( see Aviles v. Crystal Management, Inc., 253 A.D.2d 607, 608, lv denied 93 N.Y.2d 804). In any event, were we to consider this argument, we would find that even assuming, arguendo, defendants' breach of a duty under the Multiple Dwelling Law, plaintiff, who would still be required to prove the elements of common-law negligence ( id.), failed to defeat defendants' showing of entitlement to summary judgment. Plaintiff did not raise a triable issue of fact as to whether his injuries were proximately caused by the allegedly hazardous condition created by a contractor hired by defendants ( see Capraro v. Staten Island University Hospital, 245 A.D.2d 256). Moreover, no evidence was presented by plaintiff to counter defendants' proof demonstrating that they lacked notice of the transitory condition.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.