Bryan v 250 Church Assoc., LLC

Bryan v 250 Church Assoc., LLC 2009 NY Slip Op 02452 [60 AD3d 578] March 31, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 6, 2009

Melanie Bryan, Respondent,
v
250 Church Associates, LLC, et al., Respondents, and Mayco Building Services, Inc., Appellant, et al., Defendants. (And a Third-Party Action.)

—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Michael T. Reagan of counsel), for appellant.

Irom, Wittels, Freund, Berne and Serra, P.C., Bronx (Wesley M. Serra of counsel), for Melanie Bryan, respondent.

Gannon, Rosenfarb & Moskowitz, New York (Peter J. Gannon of counsel), for 250 Church Associates, LLC and 250 Church Group, LLC, respondents.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 14, 2008, which, insofar as appealed from, denied defendant Mayco Building Services, Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant's argument in support of its motion is that there is no evidence that it was negligent. However, defendant "cannot obtain summary judgment by pointing to gaps in plaintiff['s] proof" (Torres v Industrial Container, 305 AD2d 136 [2003]). It must tender [*2]evidence that it was not negligent (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Greenidge v HRH Constr. Corp., 279 AD2d 400, 402 [2001]). Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ.