Ciesinski v. Town of Aurora

• Court: New York Supreme Court — Appellate Division
• Citation: Ciesinski v. Town of Aurora, 609 N.Y.S.2d 745, 202 A.D.2d 984 (N.Y. App. Div. 1994)
• Decision Date: 11 March 1994
• Parties: Joseph R. CIESINSKI, Respondent, v. TOWN OF AURORA, County of Erie, Buffalo and Erie County Public Library, Appellants, Lawrence Bieler and Bieler Industrial Floor Maintenance, Inc., Respondents. COUNTY OF ERIE, Third-Party Plaintiff, v. AURORA TOWN PUBLIC LIBRARY, Third-Party Defendant-Appellant.

Page 745

609 N.Y.S.2d 745

202 A.D.2d 984

Joseph R. CIESINSKI, Respondent, v. TOWN OF AURORA, County of Erie, Buffalo and Erie County

Public Library, Appellants,

Lawrence Bieler and Bieler Industrial Floor Maintenance,

Inc., Respondents.

COUNTY OF ERIE, Third-Party Plaintiff, v. AURORA TOWN PUBLIC LIBRARY, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Fourth Department.

March 11, 1994.

Mark Giangreco by Mark Giangreco, Buffalo, for appellant, Town of Aurora.

Richard L. Woll by Richard Woll, Buffalo, for appellants, Lawrence Bieler and Bieler Indus. Floor

Patrick H. Nemoyer by Kristie Tokasz, Buffalo, for appellants County of Erie, and Buffalo and Erie County Public Library.

Christine G. Labarre by Terrence Higgins, Buffalo, for respondent.

Before DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Supreme Court properly denied the motions for summary judgment of defendants, County of Erie, Buffalo and Erie County Public Library and Town of Aurora and of third-party defendant Aurora Town Public Library (defendants) dismissing the complaint. Defendants have not pursued in their briefs the issue raised in their motion papers in Supreme Court that they were entitled to summary judgment because plaintiff failed to offer proof of negligent application of wax or negligent refinishing of the floors. We, therefore, deem that issue abandoned (see, First Natl. Bank of Amenia v. Mountain Food Enters., 159 A.D.2d 900, 901, 553 N.Y.S.2d 233; Lamphear v. State of New York, 91 A.D.2d 791, 458 N.Y.S.2d 71).

Additionally, Supreme Court properly rejected the contention of the County of Erie and the Erie County Public Library that they were entitled to summary judgment on the ground that they did not have actual or constructive notice of the alleged dangerous or defective condition because they failed, in the first instance, to establish that they did not create that condition (see generally, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, 459 N.Y.S.2d 196, aff'd, 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243).

Finally, the argument advanced by defendants for the first time on appeal that they were entitled to summary judgment on the ground that they did not create the alleged defective condition is not properly before us (see, Charlotte Lake Riv. Assoc. v. American Ins. Co., 68 A.D.2d 151, 154-155, 416 N.Y.S.2d 920). Similarly, the argument raised by defendant Town of Aurora and third-party defendant Aurora Town Public Library for the first time on appeal that they were entitled to summary judgment on the ground that they did not have actual...