BRYAN v. [And A Third-Party Action].

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

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].

Decided: March 31, 2009

GONZALEZ, P.J., TOM, SWEENY, CATTERSON, RENWICK, JJ. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Michael T. Reagan of counsel), for appellant. Irom, Wittels, Freund, Berne and Serra, P.C., Bronx (Wesley M. Serra of counsel), for Melanie Bryan, respondent. Gannon, Rosenfarb & Moskowitz, New York (Peter J. Gannon of counsel), for 250 Church Associates, LLC and 250 Church Group, LLC, respondents.

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 [2003] ).   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 [1985];  Greenidge v. HRH Constr. Corp., 279 A.D.2d 400, 402, 720 N.Y.S.2d 46 [2001] ).