Opinion
2012-04-20
Peter MALAMAS and Jodie Malamas, Plaintiffs–Respondents, v. TOYS “R” US–DELAWARE, INC., Defendant–Appellant.
Appeal from an order of the Supreme Court, Niagara County (Catherine R. Nugent Panepinto, J.), entered November 1, 2011 in a personal injury action. The order denied the motion of defendant for summary judgment dismissing the complaint.Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Arthur A. Herdzik of Counsel), for defendant–appellant. Magavern Magavern Grimm LLP, Buffalo (Theresa E. Quinn of Counsel), for plaintiffs–respondents.
Appeal from an order of the Supreme Court, Niagara County (Catherine R. Nugent Panepinto, J.), entered November 1, 2011 in a personal injury action. The order denied the motion of defendant for summary judgment dismissing the complaint.Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Arthur A. Herdzik of Counsel), for defendant–appellant. Magavern Magavern Grimm LLP, Buffalo (Theresa E. Quinn of Counsel), for plaintiffs–respondents.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Peter Malamas (plaintiff) when he was struck in the back of the head by a box containing a swing set at defendant's store. We conclude that Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. “It is well established ... 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” ( Atkins v. United Ref. Holdings, Inc., 71 A.D.3d 1459, 1459–1460, 896 N.Y.S.2d 556 [internal quotation marks omitted]; see DiBartolomeo v. St. Peter's Hosp. of the City of Albany, 73 A.D.3d 1326, 1327, 901 N.Y.S.2d 389). We conclude that “ ‘[d]efendant failed to meet its initial burden of establishing as a matter of law that ... its alleged negligence was not a proximate cause of plaintiff's injuries' ” ( Atkins, 71 A.D.3d at 1460, 896 N.Y.S.2d 556; see Kanney v. Goodyear Tire & Rubber Co., 245 A.D.2d 1034, 1036, 667 N.Y.S.2d 163). Inasmuch as defendant failed to meet its initial burden on the motion, the burden never shifted to plaintiffs to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.