Opinion
CA 03-00019
July 3, 2003.
Appeal from an order of Supreme Court, Onondaga County (Murphy, J.), entered July 2, 2002, which denied defendant's motion for summary judgment dismissing the amended complaint.
JOSEPH D. CALDWELL, NEW HARTFORD, FOR DEFENDANT-APPELLANT.
FINKELSTEIN PARTNERS, L.L.P., NEWBURGH (JULIO E. URRUTIA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly fell on defendant's property. Supreme Court properly denied defendant's motion for summary judgment dismissing the amended complaint. The verified amended complaint alleges that plaintiff fell on defendant's property on August 14, 1998. Defendant's affidavit and other proof submitted in support of the motion failed to rebut or effectively deny that allegation. Rather, defendant simply averred that she had no knowledge that plaintiff was on her property on the date in question or sustained any injury there. The additional proof submitted by defendant that plaintiff had commenced a separate action based on the same accident against another party also does not establish as a matter of law that plaintiff did not fall on defendant's property, particularly in light of the fact that the action was subsequently discontinued. "Because defendant failed to meet [her] initial burden on the motion, it is unnecessary to consider the sufficiency of plaintiff's opposing papers" ( Zwecker v. Bausch Lomb, 303 A.D.2d 933; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Donohue v. Seven Seventeen HB Buffalo Corp., 292 A.D.2d 786, 787).