Malamas v. Toys "R" Us-Delaware, Inc.

94 A.D.3d 1438, 942 N.Y.S.2d 840

Opinion

Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Peter Malamas (plaintiff) when he was struck in the back of the head by a box containing a swing set at defendant’s store. We conclude that Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. “It is well established . . . that [a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ (Atkins v United Ref. Holdings, Inc., 71 AD3d 1459, 1459-1460 [2010] [internal quotation marks omitted]; see DiBartolomeo v St. Peter’s Hosp. of the City of Albany, 73 AD3d 1326, 1327 [2010]). We conclude that “ ‘[defendant failed to meet its initial burden of establishing as a matter of law that ... its alleged negligence was not a proximate cause of plaintiff’s injuries’ ” (Atkins, 71 AD3d at 1460; see Kanney v Goodyear Tire & Rubber Co., 245 AD2d 1034, 1036 [1997]). Inasmuch as defendant failed to meet its initial burden on the motion, the burden never shifted to plaintiffs to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Present — Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.