O'Leary v. Bravo Hylan, LLC

8 A.D.3d 542, 778 N.Y.S.2d 700, 2004 N.Y. App. Div. LEXIS 8764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated January 23, 2004, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendants had the burden of establishing, prima facie, their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). This burden is not met merely by citing gaps in the plaintiff’s case (see Katz v PRO Form Fitness, 3 AD3d 474, 475 [2004]; Saryian v Ramana, Inc., 305 AD2d 400 [2003]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532-533 [2003]). Because the defendants failed to meet their burden, the sufficiency of the plaintiffs opposition papers need not be considered (see Berkowitz v Decker Transp. Co., 5 AD3d 712 [2004]; D’Angelo v Guerra, 307 AD2d 306, 307 [2003]; Ervin v Helfant, 303 AD2d 716 [2003]; Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). Florio, J.P., Townes, Crane and Lifson, JJ., concur.