Picart v Brookhaven Country Day School

Picart v Brookhaven Country Day School 2007 NY Slip Op 01711 [37 AD3d 798] February 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Andrew Picart, Respondent,
v
Brookhaven Country Day School et al., Appellants.

—[*1] Steven F. Goldstein, LLP, Carle Place, N.Y. (Christopher R. Invidiata of counsel), for appellants.

Meltzer, Fishman, Madigan & Campbell, New York, N.Y. (Joseph P. Campbell of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated October 3, 2006, which denied their motion, in effect, for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendants failed to satisfy their burden in the first instance of establishing, prima facie, their entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendants did here (see South v K-Mart Corp., 24 AD3d 748 [2005]; Xu v 688 Sixth Ave. Realty Co., 19 AD3d 687 [2005]; Surdo v Albany Collision Supply, Inc., 8 AD3d 655 [2004]; O'Leary v Bravo Hylan, LLC, 8 AD3d 542 [2004]; Mennerich v Esposito, 4 AD3d 399, 400 [2004]; Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388-389 [2004]). Since the defendants failed to satisfy their initial burden of proof, it is unnecessary to analyze the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., supra). Accordingly, the Supreme Court properly denied the defendants' motion. Rivera, J.P., Skelos, Dillon and Covello, JJ., concur.