| Marielisa R. v Wolman Rink Operations, LLC |
| 2012 NY Slip Op 02853 [94 AD3d 963] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Marielisa R., Respondent, v Wolman Rink Operations,LLC, Appellant. |
—[*1] Anthony Iadevaia, New York, N.Y. (Susan Davis of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Battaglia, J.), dated August 17, 2011, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that she sustained personal injuries when she was pushed and caused tofall while she waited at the main entrance to the ice rink at Wollman Rink in Central Park. Shealleged that the incident was caused by the failure of the defendant, Wollman Rink Operations,LLC, incorrectly sued herein as Wolman Rink Operations, LLC, to control a large number ofpeople, who were amassed at the instruction and direction of the defendant's employees, and whowere permitted to rush forward and push her towards the ice. The plaintiff commenced thisaction to recover damages for personal injuries against the defendant. Following the completionof discovery, the defendant moved for summary judgment dismissing the complaint. In supportof the motion, the defendant submitted, inter alia, the deposition testimony of its generalmanager, including his testimony regarding the defendant's general practices and procedures withrespect to crowd control.
The Supreme Court denied the defendant's motion, determining that the defendant failed tomeet its prima facie burden of establishing its entitlement to judgment as a matter of law. Inparticular, the Supreme Court noted that while the defendant's general manager testified to thedefendant's general practices and procedures, the defendant offered no affidavit or testimony withregard to the crowd conditions and the defendant's crowd control at the time of the accident. Thedefendant appeals. We affirm.
The defendant failed to provide evidence in admissible form to demonstrate its prima facieentitlement to judgment as a matter of law. The defendant did not establish that it took adequatecrowd control measures on the date of the accident (see Liptrot v Theater at Madison Sq.Garden, 281 AD2d 398, 399 [2001]). Indeed, the only admissible evidence submitted by thedefendant established no more than the general safety procedures of the defendant, which theevidence also [*2]revealed may have been violated by thedefendant's skate guards at the time of the accident. Furthermore, the defendant's attempt to meetits prima facie burden by pointing to gaps in the plaintiff's proof was properly rejected by theSupreme Court (see Rubistello vBartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730[2010]; Doe v Orange-Ulster Bd. ofCoop. Educ. Servs., 4 AD3d 387, 388-389 [2004]). Since the defendant failed to satisfyits prima facie burden, the denial of its motion was required without regard to the sufficiency ofthe plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Florio, Chambers and Cohen, JJ., concur.