| Savekina v New York City Tr. Auth. |
| 2015 NY Slip Op 06909 [131 AD3d 1156] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Janina L. Savekina, Respondent, v New YorkCity Transit Authority, Appellant. |
Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), forappellant.
Pavlounis & Sfouggatakis, L.L.P., Brooklyn, N.Y. (Theodore Pavlounis andAndrew G. Sfouggatakis of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County(Jimenez Salta, J.), dated November 7, 2014, as denied that branch of its motion whichwas for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleged that she slipped and fell while riding an ascending escalator atthe Brighton Beach subway station in Brooklyn. After issue was joined, but prior todepositions being conducted, the defendant moved, inter alia, for summary judgmentdismissing the complaint, contending that the plaintiff would be unable to demonstratethat it had actual or constructive notice of a wet condition that allegedly caused her toslip and fall. The Supreme Court denied the motion, and the defendant appeals.
On a motion by a defendant for summary judgment dismissing the complaint, thedefendant does not meet its burden of affirmatively establishing its prima facieentitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff'scase; rather, it must affirmatively demonstrate the merit of its defense (see Collado v Jiacono, 126AD3d 927 [2015]). The "prima facie showing which a defendant must make on amotion for summary judgment is governed by the allegations of liability made by theplaintiff in the pleadings" (Koziar v Grand Palace Rest., 125 AD3d 607, 608 [2015];see Costen v Cohen, 124AD3d 819 [2015]; Lipari vTown of Oyster Bay, 116 AD3d 927, 928 [2014]; Wald v City of New York, 115AD3d 939, 940 [2014]).
Here, the plaintiff alleged in her verified complaint and verified bill of particulars,inter alia, that the escalator was broken and defective. The defendant did not addressthese contentions in its motion papers. Accordingly, the defendant failed to meet itsinitial prima facie burden (seeCosten v Cohen, 124 AD3d 819 [2015]; Joseph v City of New York, 122 AD3d 800, 801 [2014]; Martinez v 1261 Realty Co.,LLC, 121 AD3d 955 [2014]). Thus, the Supreme Court properly denied thatbranch of the defendant's motion which was for summary judgment dismissing thecomplaint, without regard to the sufficiency of the plaintiff's opposition papers (seeWinegrad v New York Univ. [*2]Med. Ctr., 64NY2d 851, 853 [1985]).
The parties' remaining contentions either need not be reached in light of ourdetermination, or are improperly raised for the first time on appeal. Mastro, J.P., Cohen,Maltese and Barros, JJ., concur.