Melanie BRYAN, Plaintiff-Respondent, v. 250 CHURCH ASSOCIATES, LLC, et al., Defendants-Respondents, R.C. Dolner, Inc., et al., Defendants, Mayco Building Services, Inc., Defendant-Appellant. [And A Third-Party Action].
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 14, 2008, which, insofar as appealed from, denied defendant Mayco Building Services, Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant's argument in support of its motion is that there is no evidence that it was negligent. However, defendant “cannot obtain summary judgment by pointing to gaps in plaintiff['s] proof” (Torres v. Industrial Container, 305 A.D.2d 136, 760 N.Y.S.2d 128  ). It must tender evidence that it was not negligent (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 ; Greenidge v. HRH Constr. Corp., 279 A.D.2d 400, 402, 720 N.Y.S.2d 46  ).