Atkins v United Ref. Holdings, Inc.

Atkins v United Ref. Holdings, Inc. 2010 NY Slip Op 02261 [71 AD3d 1459] March 19, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Violet Atkins et al., Respondents, v United Refining Holdings, Inc., Appellant.

—[*1] Damon Morey LLP, Buffalo (Michael J. Willett of counsel), for defendant-appellant.

Campbell & Shelton LLP, Eden (Eric M. Shelton of counsel), for plaintiffs-respondents.

Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered July 13, 2009 in a personal injury action. The order denied the motion of defendant for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Violet Atkins (plaintiff) when she allegedly tripped and fell on a sidewalk on property owned by defendant. 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' " (Dodge v City of Hornell Indus. Dev. Agency, 286 AD2d 902, 903 [2001]; see e.g. Hunley v University of Rochester Strong Mem. Hosp., 294 AD2d 923 [2002]; Donohue v Seven Seventeen HB Buffalo Corp., 292 AD2d 786 [2002]). We conclude that "[d]efendant failed to meet its initial burden of establishing as a matter of law that it was not negligent . . . or that its alleged negligence was not a proximate cause of plaintiff's injuries" (Hunley, 294 AD2d 923 [2002]; see also Kanney v Goodyear Tire & Rubber Co., 245 AD2d 1034, 1036 [1997]; cf. McGill v United Parcel Serv., Inc., 53 AD3d 1077 [2008]). In any event, we agree with plaintiffs that they alleged facts in opposition to the motion from which defendant's negligence may reasonably be inferred and thus that they raised a triable issue of fact sufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.