PICART v. BROOKHAVEN COUNTRY DAY SCHOOL (2007)

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 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   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 A.D.3d 748, 807 N.Y.S.2d 133;  Xu v. 688 Sixth Ave. Realty Co., 19 A.D.3d 687, 797 N.Y.S.2d 302;  Surdo v. Albany Collision Supply, Inc., 8 A.D.3d 655, 779 N.Y.S.2d 544;  O'Leary v. Bravo Hylan, LLC, 8 A.D.3d 542, 778 N.Y.S.2d 700;  Mennerich v. Esposito, 4 A.D.3d 399, 400, 772 N.Y.S.2d 91;  Doe v. Orange-Ulster Bd. of Coop. Educ. Servs., 4 A.D.3d 387, 388-389, 771 N.Y.S.2d 389).   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.