Scher v. Stropoli

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Golar, J.), dated June 25, 2003, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff fell after failing to notice an elevation difference caused by a single-step riser separating the private dining area and the main dining area at the defendant Café Milano. The plaintiff alleged that she failed to detect the elevation difference because the single-step riser between the private dining area and the main dining area consisted of identical tiles, and because the restaurant was dimly lit. The Supreme Court properly denied the defendants’ motion since they failed to establish as a matter of law that they maintained their property in a reasonably safe manner (see Swerdlow v WSK Props. Corp., 5 AD3d 587 [2004]; Streit v DTUT, 302 AD2d 450 [2003]). The parties’ contentions regarding the applicability of certain regulations have been raised for the first time on appeal and are not properly before this Court (see Russell v B&B Indus., 309 AD2d 914, 915 [2003]). Santucci, J.P., Florio, Schmidt and Rivera, JJ., concur.