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

Congetta FRANK and Anthony V. Frank, Jr., Plaintiffs-Respondents, v. PRICE CHOPPER OPERATING CO., INC., Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, HURLBUTT, SCUDDER and KEHOE, JJ. C. Louis Abelove, Utica, for defendant-appellant. Paul L. Pileckas, Rome, for plaintiffs-respondents.

Plaintiffs commenced this action seeking to recover damages for personal injuries sustained by Congetta Frank (plaintiff) when she slipped and fell on a piece of waxed paper in the aisle at defendant's store. Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the complaint insofar as it is based on the theories that defendant affirmatively created the dangerous condition or had constructive notice of it.   It is well established that a party cannot obtain summary judgment “by pointing to gaps in its opponent's proof” (George Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894;  see, Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457).   Defendant failed to meet its initial burden of demonstrating that it did not create the allegedly dangerous condition (see, Telesco v. Bateau, 273 A.D.2d 894, 711 N.Y.S.2d 371) and that the condition was not visible or apparent for a sufficient length of time to enable defendant to discover and correct it (cf., Battaglia v. Toys “R” Us, 271 A.D.2d 627, 706 N.Y.S.2d 468;  Tenebruso v. Toys “R” Us-NYTEX, 256 A.D.2d 1236, 1237, 682 N.Y.S.2d 785).   Because defendant failed to meet its initial burden, we need not determine the sufficiency of plaintiffs' opposition to the motion (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Joyes v. Buffalo Waterfront Rest. Corp., 262 A.D.2d 1019, 1019-1020, 691 N.Y.S.2d 835).

Order unanimously affirmed with costs.


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