Opinion
2001-01214
Argued February 22, 2002.
March 18, 2002.
In an action to recover damages for personal injuries, the defendant Sylvia Whylie appeals from an order of the Supreme Court, Kings County (Hall, J.), dated December 22, 2000, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.
Lewis, Johs, Avallone, Aviles Kaufman, LLP, Melville, N.Y. (Ann K. Kandel and Michael G. Kruzynski of counsel), for appellant.
Marcowitz Corring, PLLC, New York, N.Y. (Edward L. C. Marcowitz of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, LEO F. McGINITY, THOMAS A. ADAMS, JJ.
ORDERED that the order is affirmed, with costs.
As the party seeking summary judgment, the appellant had the burden of demonstrating her entitlement thereto as a matter of law (see, Smith v. ATT Resource Mgt. Corp., 259 A.D.2d 480). Moreover, "'[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense'" (Pace v. International Bus. Mach. Corp., 248 A.D.2d 690, 691, quoting Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615; see, Dodge v. City of Hornell Indus. Dev. Agency, 286 A.D.2d 902; Russell v. Kraft, Inc., 284 A.D.2d 386). The appellant failed to establish, prima facie, her alleged freedom from liability as an out-of-possession landowner (see, Mikolajczyk v. A.C. Morgan Contrs., 273 A.D.2d 864; cf., McClenan v. Brancato Iron Fence Works, 282 A.D.2d 722; Dorestant v. Snow, Inc., 274 A.D.2d 542). Thus, the Supreme Court properly denied her motion for summary judgment.
The appellant's remaining contentions are without merit.
FLORIO, J.P., S. MILLER, McGINITY and ADAMS, JJ., concur.