ATKINS v. UNITED REFINING HOLDINGS INC (2010)

 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 A.D.2d 902, 903, 730 N.Y.S.2d 902;  see e.g. Hunley v. University of Rochester Strong Mem. Hosp., 294 A.D.2d 923, 741 N.Y.S.2d 770;  Donohue v. Seven Seventeen HB Buffalo Corp., 292 A.D.2d 786, 739 N.Y.S.2d 506).   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 A.D.2d 923, 741 N.Y.S.2d 770;  see also Kanney v. Goodyear Tire & Rubber Co., 245 A.D.2d 1034, 1036, 667 N.Y.S.2d 163;  cf. McGill v. United Parcel Serv., Inc., 53 A.D.3d 1077, 861 N.Y.S.2d 887).   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 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

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

MEMORANDUM: