| Maio v John Andrew, Inc. |
| 2011 NY Slip Op 05028 [85 AD3d 741] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Nancy Maio, Appellant, v John Andrew, Inc., et al.,Respondents. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Woodard, J.), dated March 24, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly tripped and fell as she attempted to enter the defendants' restaurant.The entryway was not flush with the exterior ground, and the doorsill protruded out of theexterior wall, forming an overhang or lip. As the plaintiff attempted to enter the restaurant, herright toes struck the overhang or lip, allegedly causing her to fall and sustain injuries. Theplaintiff commenced this action against the defendants alleging negligence. The defendantsmoved for summary judgment dismissing the complaint, and the Supreme Court granted themotion. We reverse.
"The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to eliminate anymaterial issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). Here, the defendants failed to make that requisite showing. The evidencesubmitted by the defendants did not eliminate a triable issue of fact as to whether, under thecircumstances of this case, the overhang or lip was an inherently dangerous condition (see Villano v Strathmore TerraceHomeowners Assn., Inc., 76 AD3d 1061, 1061-1062 [2010]; Salomon v Prainito, 52 AD3d 803,805 [2008]). The defendants cannot satisfy their prima facie burden merely by pointing out gapsin the plaintiff's case (see Stroppel vWal-Mart Stores, Inc., 53 AD3d 651, 653 [2008]; Picart v Brookhaven Country Day School, 37 AD3d 798, 799[2007]).
Since the defendants failed to satisfy their initial burden of establishing their prima facieentitlement to judgment as a matter of law, the burden did not shift to the plaintiff and we need[*2]not consider the sufficiency of the plaintiff's oppositionpapers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the SupremeCourt should have denied the defendants' motion for summary judgment dismissing thecomplaint. Skelos, J.P., Dickerson, Hall and Sgroi, JJ., concur.