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Supreme Court, Appellate Division, Fourth Department, New York.

L.M.B., an Infant Under the Age of Fourteen (14) Years, by her Parents and Natural Guardians, William BERNARDELLI and Kelly Bernardelli, and William Bernardelli and Kelly Bernardelli, Individually, Plaintiffs-Respondents, v. SEVYLOR USA, INC., West Marine, Inc. and West Marine Products, Inc., Defendants-Appellants.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, LUNN, AND PERADOTTO, JJ. Sugarman Law Firm, LLP, Syracuse (Sandra L. Holihan of Counsel), for Defendants-Appellants. Greene & Reid, LLP, Syracuse (James E. Reid of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this products liability action seeking damages for injuries sustained by plaintiff daughter (hereafter, plaintiff) when she fell from an “inflatable recreational water tube” (hereafter, water tube) as it was towed behind a boat operated by plaintiff William Bernardelli, plaintiff's father.   We conclude that Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint.   Although plaintiffs alleged, inter alia, that plaintiff's injuries were caused by defendants' defective design and manufacture of the water tube, defendants failed to submit evidence in support of their motion establishing that the water tube was not defective, nor did they even contend that it was not defective.   Rather, defendants contended that there were other likely causes of plaintiff's injuries, such as the tow rope or debris in the water.   To meet their burden on the motion, defendants were required to “ ‘tender ․ evidentiary proof in admissible form’ ” establishing as a matter of law that the allegedly defective water tube was not a proximate cause of plaintiff's injuries (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 42, 760 N.Y.S.2d 79, 790 N.E.2d 252;  cf. Ramirez v. Miller, 29 A.D.3d 310, 313, 814 N.Y.S.2d 148), and they failed to do so.   Indeed, they failed to submit any evidence to support their theory that plaintiff's injuries were caused by something other than the water tube (cf. Speller, 100 N.Y.2d at 42, 760 N.Y.S.2d 79, 790 N.E.2d 252).   Defendants cannot meet their burden merely by “ ‘noting gaps in [their] opponent[s'] proof’ ” (Giangrosso v. Kummer Dev. Corp., 8 A.D.3d 1037, 1038, 778 N.Y.S.2d 332).   The burden of proof therefore never shifted to plaintiffs, and we thus do not consider the adequacy of plaintiffs' submissions in opposition to defendants' motion (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).

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