Hunley v. Univ. of Rochester Strong Memorial Hosp.

• Decision Date: 03 May 2002
• Docket Number: 01-02583,4
• Parties: RALEIGH HUNLEY,, v UNIVERSITY OF ROCHESTER STRONG MEMORIAL HOSPITAL,CA 01-02583 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on
• Court: New York Supreme Court — Appellate Division

RALEIGH HUNLEY, PLAINTIFF-RESPONDENT, v UNIVERSITY OF ROCHESTER STRONG MEMORIAL HOSPITAL, DEFENDANT-APPELLANT.

CA 01-02583

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

Decided on May 3, 2002

Appeal from an order of Supreme Court, Monroe County (Fisher, J.), entered October 16, 2001, which denied defendant's motion seeking summary judgment.

OSBORN, REED & BURKE, LLP, ROCHESTER (CHRISTIAN C. CASINI OF COUNSEL), FOR DEFENDANT-APPELLANT.

ADAIR, KAUL, MURPHY, AXELROD & SANTORO, LLP, ROCHESTER (ERNEST D. SANTORO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

PRESENT: PINE, J. P., HURLBUTT, BURNS, GORSKI, AND LAWTON, JJ.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint. In support of the motion, defendant contended that plaintiff would be unable to prove negligence or causation because plaintiff's testimony at trial would be speculative. "It is well established, however, that '[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof'" (Dodge v City of Hornell Indus. Dev. Agency, 286 A.D.2d 902, 903, quoting Orcutt v American Linen Supply Co., 212 A.D.2d 979, 980; see Kajfasz v Wal-Mart Stores, 288 A.D.2d 902). Defendant failed to meet its initial burden of establishing as a matter of law that it was not negligent (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853) or that its alleged negligence was not a proximate cause of plaintiff's injuries (see Dodge, 286 A.D.2d at 903; Kanney v Goodyear Tire & Rubber Co., 245 A.D.2d 1034, 1036). Therefore, the burden never shifted to plaintiff to raise an issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).