Opinion
(1027) CA 01-00398.
September 28, 2001.
(Appeals from Order of Supreme Court, Steuben County, Bradstreet, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P. J., GREEN, PINE, SCUDDER AND LAWTON, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
Michael O. Dodge (plaintiff) was employed as a security guard by Morrison-Knudsen Co., Inc. (Morrison-Knudsen), which operated a factory in a building that it leased from defendant. It is undisputed that Morrison-Knudsen was the sole tenant of the factory building, and thus defendant was not the owner of a tenant-factory building within the meaning of article 11 of the Labor Law ( see, Steinkohl v. Brookman Realty Corp., 184 Misc. 506, 508, affd sub nom. Steinkohl v. Dorsch, 271 App. Div. 996, affd 297 N.Y. 683; see also, Weiss v. City of New York, 95 N.Y.2d 1, 5-6; McAndrew v. 5905 Broadway Realty Corp., 282 App. Div. 757). Supreme Court therefore erred in denying that part of defendant's motion seeking summary judgment dismissing the claims based on that article, and we modify the order accordingly.
Contrary to the contention of defendant, the court properly denied that part of its motion seeking summary judgment dismissing the remainder of the complaint. In support thereof, defendant contended that plaintiff would be unable to prove negligence or causation because plaintiff could not remember the accident. It is well established, however, that "[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980 ; see, Frank v. Price Chopper Operating Co., 275 A.D.2d 940, 941). Defendant failed to establish as a matter of law that it was not negligent ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853) or that any alleged negligence was not a proximate cause of plaintiff's injuries ( see, Kanney v. Goodyear Tire Rubber Co., 245 A.D.2d 1034, 1036; Brennan v. Carriage House Motor Cars, 224 A.D.2d 204, 205) and thus failed to meet its initial burden of proof on the motion with respect to the remainder of the complaint.