Bryan v. 250 Church Associates, LLC, 197.

• Decision Date: 31 March 2009
• Docket Number: 197.
• Citation: 2009 NY Slip Op 02452,60 A.D.3d 578,876 N.Y.S.2d 38
• Parties: MELANIE BRYAN, Respondent, v. 250 CHURCH ASSOCIATES, LLC, et al., Respondents, and MAYCO BUILDING SERVICES, INC., Appellant, et al., Defendants. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 578

876 N.Y.S.2d 38

2009 NY Slip Op 02452

MELANIE BRYAN, Respondent, v. 250 CHURCH ASSOCIATES, LLC, et al., Respondents, and MAYCO BUILDING SERVICES, INC., Appellant, et al., Defendants. (And a Third-Party Action.)

197.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided March 31, 2009.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 14, 2008, which, insofar as appealed from, denied defendant Mayco Building Services, Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant's argument in support of its motion is that there is no evidence that it was negligent. However, defendant "cannot obtain summary judgment by pointing to gaps in plaintiff['s] proof" (Torres v Industrial Container, 305 AD2d 136 [2003]). It must tender evidence that it was not negligent (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Greenidge v HRH Constr. Corp., 279 AD2d 400, 402 [2001]).

Concur — GONZALEZ, P.J., TOM, SWEENY, CATTERSON and RENWICK, JJ.