| Malamas v Toys "R" Us-Delaware, Inc. |
| 2012 NY Slip Op 03005 [94 AD3d 1438] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| Peter Malamas et al., Respondents, v Toys "R" Us-Delaware, Inc.,Appellant. |
—[*1] Magavern Magavern Grimm LLP, Buffalo (Theresa E. Quinn of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Niagara County (Catherine R. NugentPanepinto, J.), entered November 1, 2011 in a personal injury action. The order denied themotion of defendant for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Peter Malamas (plaintiff) when he was struck in the back of the head by a boxcontaining a swing set at defendant's store. We conclude that Supreme Court properly denieddefendant's motion for summary judgment dismissing the complaint. "It is well established. . . that [a] moving party must affirmatively [demonstrate] the merits of its cause ofaction or defense and does not meet its burden by noting gaps in its opponent's proof" (Atkins v United Ref. Holdings, Inc., 71AD3d 1459, 1459-1460 [2010] [internal quotation marks omitted]; see DiBartolomeo v St. Peter's Hosp. of theCity of Albany, 73 AD3d 1326, 1327 [2010]). We conclude that " '[d]efendant failed tomeet its initial burden of establishing as a matter of law that . . . its allegednegligence was not a proximate cause of plaintiff's injuries' " (Atkins, 71 AD3d at 1460;see Kanney v Goodyear Tire & Rubber Co., 245 AD2d 1034, 1036 [1997]). Inasmuch asdefendant failed to meet its initial burden on the motion, the burden never shifted to plaintiffs toraise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.