Opinion
2004-01547.
Decided June 21, 2004.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated January 23, 2004, which denied their motion for summary judgment dismissing the complaint.
Fiedelman McGaw, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellants.
Bernadette Panzella, P.C., Staten Island, N.Y. (Robert A. Mulhall of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, ROBERT A. LIFSON, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendants had the burden of establishing, prima facie, their entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hos., 68 N.Y.2d 320). This burden is not met merely by citing gaps in the plaintiff's case ( see Katz v. PRO Form Fitness, 3 A.D.3d 474, 475; Saryian v. Ramana, Inc., 305 A.D.2d 400; Kucera v. Waldbaums Supermarkets, 304 A.D.2d 531, 532-533). Because the defendants failed to meet their burden, the sufficiency of the plaintiff's opposition papers need not be considered ( see Berkowitz v. Decker Transp. Co., 5 A.D.3d 712; D'Angelo v. Guerra, 307 A.D.2d 306, 307; Ervin v. Helfant, 303 A.D.2d 716; Chaplin v. Taylor, 273 A.D.2d 188; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 438).
FLORIO, J.P., TOWNES, CRANE and LIFSON, JJ., concur.