McArthur v. Muhammad

27 A.D.3d 532, 810 N.Y.S.2d 352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2006
• Status: Published

Opinion

In an action to recover damages for personal injury and wrongful death, the defendant County of Suffolk appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Hudson, J.), dated October 7, 2005, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered the order is affirmed insofar as appealed from, with costs.

A party moving for summary judgment must first make out a prima facie case showing its entitlement to summary judgment. Absent such a showing, the motion must be denied irrespective of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Hernandez v City of New York, 24 AD3d 723 [2005]). If its own papers are insufficient, a party cannot establish its entitlement to summary judgment merely by pointing to the gaps in its opponent’s proof (see South v K-Mart Corp., 24 AD3d 748 [2005]; Valdez v Aramark Servs., Inc., 23 AD3d 639 [2005]). Here, the County never made out its prima facie case. Accordingly, the burden never shifted to the plaintiff. Florio, J.P., Krausman, Goldstein and Lifson, JJ., concur.