| Dow v Schenectady County Dept. of Social Servs. |
| 2007 NY Slip Op 09861 [46 AD3d 1084] |
| December 13, 2007 |
| Appellate Division, Third Department |
| Vanessa Dow, Respondent, v Schenectady County Department ofSocial Services, Appellant. |
—[*1] The DeLorenzo Law Firm, Schenectady (Paul E. DeLorenzo of counsel), forrespondent.
Mugglin, J. Appeal from an order of the Supreme Court (Giardino, J.), entered December 20,2006 in Schenectady County, which, among other things, denied defendant's motion for summaryjudgment dismissing the complaint.
Plaintiff alleges that she was injured when she fell to the floor because a chair she wasattempting to sit in, in defendant's office, slid out from under her. As limited by its brief,defendant appeals only from Supreme Court's denial of its summary judgment motion seekingdismissal of the complaint.
To successfully shift the burden of demonstrating a triable issue of fact to the nonmovant, aparty seeking summary judgment must establish a prima facie entitlement to judgment, as amatter of law, by submitting competent evidence which eliminates any material issue of fact(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]; Manculich v Dependable Auto Sales & Serv., Inc., 39 AD3d 1070,1071 [2007]; Chicago Tit. Ins. Co. vMazula, 38 AD3d 1114, 1115 [2007]). In this premises liability case, defendant wasobligated to submit competent evidence to establish, as a matter of law, that it did not create thedangerous condition (see Dong v Cazenovia Coll., 263 AD2d 606, 607 [1999]), or that itdid not have notice of such a condition (see Grant v Radamar Meat, 294 AD2d 398,398-399 [2002]; McCombs v Related Mgt. Co., 290 AD2d 681, [*2]681 [2002]). This burden is not met by relying on perceived gaps inthe nonmoving party's proof (see Johnson City Cent. School Dist. v Fidelity & Deposit Co. ofMd., 272 AD2d 818, 821 [2000]; Rothbard v Colgate Univ., 235 AD2d 675, 678[1997]). Although plaintiff's fall was witnessed by several of defendant's employees, defendantoffered no evidence in support of its motion as to the condition of the chair or the floor, thusfailing to establish that it did not create a dangerous condition or that it lacked notice thereof.
Cardona, P.J., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.