PETER MALAMAS AND JODIE MALAMAS PLAINTIFFS RESPONDENTS v. TOYS US DELAWARE INC DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Peter Malamas (plaintiff) when he was struck in the back of the head by a box containing a swing set at defendant's store.   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” (Atkins v. United Ref. Holdings, Inc., 71 AD3d 1459, 1459–1460 [internal quotation marks omitted];  see DiBartolomeo v St. Peter's Hosp. of the City of Albany, 73 AD3d 1326, 1327).   We conclude that “ ‘[d]efendant failed to meet its initial burden of establishing as a matter of law that ․ its alleged negligence was not a proximate cause of plaintiff's injuries' “ (Atkins, 71 AD3d at 1460;  see Kanney v. Goodyear Tire & Rubber Co., 245 A.D.2d 1034, 1036).   Inasmuch as defendant failed to meet its initial burden on the motion, the burden never shifted to plaintiffs to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

Frances E. Cafarell

Clerk of the Court