| Velasquez v Gomez |
| 2007 NY Slip Op 07425 [44 AD3d 649] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Tomas Velasquez et al., Respondents, v William Gomez etal., Respondents-Appellants, and Cynthia White,Appellant-Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents-appellants. Collado, Collado & Fiore, PLLC, Brentwood, N.Y. (Andrew Fiore of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant Cynthia White appealsfrom so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 23,2006, as denied her motion for summary judgment dismissing the complaint and the cross claiminsofar as asserted against her, and the defendants William Gomez and El Salvador Taxi, Inc.,cross-appeal, as limited by their brief, from so much of the same order as denied their crossmotion for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs to the plaintiffs payable by thedefendants appearing separately and filing separate briefs.
The 14-year-old plaintiff Tomas Velasquez (hereinafter the infant plaintiff) was riding hisbicycle when, after failing to stop at a stop sign at an intersection, he struck a vehicle operated bythe defendant William Gomez and owned by the defendant El Salvador Taxi, Inc. (hereinafter ElSalvador Taxi, and collectively with Gomez, the taxi defendants). The defendant Cynthia Whiteowned property located at the intersection where the accident occurred.
The plaintiffs commenced this action against the defendants to recover damages for [*2]injuries the infant plaintiff suffered as a result of the accidentalleging, inter alia, that Gomez was negligent in his operation of the taxi he was driving byfailing to use caution in proceeding through an intersection where his vision was obstructed bythe overgrowth of vegetation on White's property. The plaintiffs also alleged that White wasnegligent, inter alia, for failing to comply with Islip Town Code §§ 68-404 and68-405 by allowing vegetation on her property to exceed standards set forth in those provisions.Subsequently, White moved for summary judgment dismissing the complaint and the cross claiminsofar as asserted against her. The taxi defendants cross-moved for summary judgmentdismissing the complaint insofar as asserted against them. The Supreme Court denied the motionand cross motion, and we affirm.
The Supreme Court properly denied White's motion since White failed to establish her primafacie entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 852 [1985]). "[A] party does not carry its burden in moving for summary judgmentby pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of itsclaim or defense" (George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615[1992]). White merely pointed to gaps in the plaintiffs' proof instead of affirmativelydemonstrating that she did not violate relevant portions of the Islip Town Code in maintainingher property or that such violations were not a proximate cause of the accident (see Beyer vSterling, 303 AD2d 701 [2003]). Since White failed in the first instance to present a primafacie case entitling her to judgment as a matter of law, the sufficiency of the plaintiffs' oppositionpapers is not at issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 852).
In addition, the Supreme Court properly denied the taxi defendants' cross motion since theyalso failed to establish their prima facie entitlement to summary judgment (id.). The taxidefendants' submissions raised triable issues of fact as to whether the lack of visibility at theintersection warranted an appropriate reduction of speed by Gomez and whether Gomezexercised due care to avoid colliding with the infant plaintiff.
The plaintiffs' remaining contentions are without merit. Miller, J.P., Skelos, Covello andMcCarthy, JJ., concur.