VITTORIO v. HAUL COMPANY (2008)

In an action to recover damages for personal injuries, the defendants U-Haul Company, U-Haul Company of New York, Inc., and U-Haul International appeal from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated June 1, 2007, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The appellants failed to make a prima facie showing that they neither created nor had actual or constructive notice of the allegedly dangerous condition (see Hudlin v. Epicurean Deli, 46 A.D.3d 752, 847 N.Y.S.2d 479).   In addition, the appellants did not submit any evidence to establish their contention that the allegedly defective condition was trivial (see Reeves v. New York City Tr. Auth., 276 A.D.2d 543, 716 N.Y.S.2d 575).   The appellants merely pointed to gaps in the plaintiff's proof, rather than affirmatively demonstrating the merit of their defense, and thus they failed to carry their burden as movants seeking summary judgment (see Pappalardo v. Long Is. R.R. Co., 36 A.D.3d 878, 829 N.Y.S.2d 173;  Kucera v. Waldbaums Supermarkets, 304 A.D.2d 531, 758 N.Y.S.2d 133).   We reach this conclusion without considering the decedent's pre-action examination under oath, taken by the defendant Republic Western Insurance Company, which the appellants contend is inadmissible against them (cf.  CPLR 3117[a][3] ).