| Atkins v United Ref. Holdings, Inc. |
| 2010 NY Slip Op 02261 [71 AD3d 1459] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Violet Atkins et al., Respondents, v United Refining Holdings,Inc., Appellant. |
—[*1] Campbell & Shelton LLP, Eden (Eric M. Shelton of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.),entered July 13, 2009 in a personal injury action. The order denied the motion of defendant forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byViolet Atkins (plaintiff) when she allegedly tripped and fell on a sidewalk on property owned bydefendant. We conclude that Supreme Court properly denied defendant's motion for summaryjudgment dismissing the complaint. "It is well established . . . that '[a] moving partymust affirmatively [demonstrate] the merits of its cause of action or defense and does not meetits burden by noting gaps in its opponent's proof' " (Dodge v City of Hornell Indus. Dev.Agency, 286 AD2d 902, 903 [2001]; see e.g. Hunley v University of Rochester StrongMem. Hosp., 294 AD2d 923 [2002]; Donohue v Seven Seventeen HB Buffalo Corp.,292 AD2d 786 [2002]). We conclude that "[d]efendant failed to meet its initial burden ofestablishing as a matter of law that it was not negligent . . . or that its allegednegligence was not a proximate cause of plaintiff's injuries" (Hunley, 294 AD2d 923[2002]; see also Kanney v Goodyear Tire & Rubber Co., 245 AD2d 1034, 1036[1997]; cf. McGill v United ParcelServ., Inc., 53 AD3d 1077 [2008]). In any event, we agree with plaintiffs that theyalleged facts in opposition to the motion from which defendant's negligence may reasonably beinferred and thus that they raised a triable issue of fact sufficient to defeat the motion (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.