Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Glownia, J.
Present — Lawton, J.P., Fallon, Wesley, Doerr and Boehm, JJ.
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 N.Y.2d 154, 160, quoting Teller v. Prospect Hgts. Hosp., 280 N.Y. 456, 460; see also, Conte v. Large Scale Dev. Corp., 10 N.Y.2d 20, 29; Schumer v. Caplin, 241 N.Y. 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 A.D.2d 41, 45; McDonald v. Bliss, 106 A.D.2d 619; Pietropaoli Trucking v Nationwide Mut. Ins. Co., 100 A.D.2d 680, 681; Schoonmaker v State of New York, 94 A.D.2d 741).