Ciccatello v. Tops Friendly Markets, Inc.

186 A.D.2d 1091

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1992
• Status: Published

Opinion

— Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment. "A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562)” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967). Here, defendant’s motion relied on the affidavit of its attorney, which asserted that summary judgment was appropriate because plaintiff had not proven that defendant had notice of the injury-producing condition. That was insufficient to sustain defendant’s burden on a motion for summary judgment (see, Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614). (Appeal from Order of Supreme Court, Erie County, Francis, J. — Summary Judgment.) Present — Green, J. P., Pine, Balio, Boehm and Davis, JJ.