Opinion
2003-175 RI C.
Decided January 29, 2004.
Appeal by plaintiffs from an order of the Civil Court, Richmond County (E. Vitaliano, J.), entered October 3, 2002, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.
Order unanimously reversed without costs, motions by defendants and third-party defendant for summary judgment denied, and complaint and third-party complaint reinstated.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
In this personal injury action, plaintiff Joseph Butler, an employee of third-party defendant Supermarkets General Corp. a/k/a Pathmark Supermarkets (Pathmark) brought suit against cleaning contractors, Gary Dicanio d/b/a G/A Cleaning and Maintenance Co. and G/A Cleaning Co. (collectively, Dicanio), and Dicanio impleaded Pathmark. Upon its motion for summary judgment, Dicanio failed to establish entitlement to judgment as a matter of law ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). Dicanio's representative's assertion at his deposition that the wax his company applied to the floor could not cause the display platform (that plaintiff was lifting when injured) to become stuck to the floor, is insufficient to establish this proposition ( see Kucera v. Waldbaums Supermarkets, 304 AD2d 531; Incorporated Vil. of Freeport v. Freeport Excursions, 263 AD2d 445, 446). In addition, the parties dispute how the display platform came to be in an incorrect position, and neither Dicanio nor Pathmark could provide any evidence as to how long it had been in this position. Furthermore, in light of defendants' and third-party defendant's arguments, we note that "[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively establish the merit of its claim or defense" ( Pace v. International Bus. Mach. Corp., 248 AD2d 690, 691), and the sufficiency of the opposing papers is not a fact in this determination ( Winegrad, 64 NY2d at 853). Finally, plaintiffs own behavior in repeatedly attempting to move the stuck platform goes to his comparative fault, if any, not to proximate causation of the accident. His multiple attempts to lift a platform of a size and weight he had lifted successfully on many prior occasions were not reckless, and were foreseeable under the circumstances ( see generally Kriz v. Schum, 75 NY2d 25; Derdiarian v. Felix Contr. Corp., 51 NY2d 308).
As between Dicanio and Pathmark in the third-party action, a question of fact exists as to whether Pathmark may have conducted its own waxing operations, possibly contributing to the condition of the platform. Hence, Pathmark's motion must also be denied and the third-party complaint reinstated ( see Bardovill v. Structure Tone Inc., 282 AD2d 635).