Gruber v. Latello

—Order insofar as appealed from unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiff’s motion for summary judgment with respect to liability against L V & L Resort Corporation (defendant). Defendant’s violation of 10 NYCRR 6-2.14 as determined at an administrative proceeding by the Erie County Department of Health did not constitute negligence per se. It is well settled "that the violation of a rule of an administrative agency * * * lacking the force and effect of a substantive legislative enactment, is 'merely some evidence which the jury may consider on the question of defendant’s negligence’ ” (Long v Forest-Fehlhaber, 55 NY2d 154, 160, quoting Teller v Prospect Hgts. Hosp., 280 NY 456, 460; see also, Conte v Large Scale Dev. Corp., 10 NY2d 20, 29; Schumer v Caplin, 241 NY 346).

We do not reach the further contention of plaintiff that defendant may not relitigate its liability because of the prior administrative determination. Plaintiff did not rely upon that theory in its motion for summary judgment and, therefore, we decline to reach it (see, Stilo v County of Nassau, 122 AD2d 41, 45; McDonald v Bliss, 106 AD2d 619; Pietropaoli Trucking v Nationwide Mut. Ins. Co., 100 AD2d 680, 681; Schoonmaker v State of New York, 94 AD2d 741). (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Negligence.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Boehm, JJ.