Opinion
February 23, 1998
Appeal from the Supreme Court, Suffolk County (Rohl, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, an employee of the appellant, was injured when the door of a storage trailer, which had been leased from the defendant third-party plaintiff, fell upon him as he was attempting to place materials in the trailer.
As a third-party defendant, the appellant was entitled to move for summary judgment dismissing the complaint ( see, CPLR 1008; Townside Furniture Decorators v. Best Lbr. Millwork Co., 148 A.D.2d 442; Lewis v. Borg-Warner Corp., 35 A.D.2d 722). However, to obtain such relief, the movant bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law. Absent such a showing, the motion is to be denied regardless of the insufficiency of the opposing papers ( see, Empbanque Capital Corp. v. Griffith, 198 A.D.2d 259; Shamberg Marwell Cherneff Hocherman v. Laufer, 193 A.D.2d 664). Here, the appellant failed to meet its initial burden since questions of fact remain as to whether the defendant third-party plaintiff may have had notice of the allegedly defective condition which caused the plaintiff's injuries, and whether the defendant third-party plaintiff may have affirmatively created such condition ( see generally, Mercer v. City of New York, 88 N.Y.2d 955; Chin v. Harp Mktg, 232 A.D.2d 601).
Accordingly, although the Supreme Court improperly characterized the appellant's motion as moot, it properly denied the appellant's motion for summary judgment dismissing the complaint.
Bracken, J. P., Santucci, Altman and McGinity, JJ., concur.