Opinion
No. 197.
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.
O'Connor, O'Connor, Hintz Deveney, LLP, Melville (Michael T. Reagan of counsel), for appellant.
Irom, Wittels, Freund, Berne and Serra, P.C., Bronx (Wesley M. Serra of counsel), for Melanie Bryan, respondent.
Gannon, Rosenfarb Moskowitz, New York (Peter J. Gannon of counsel), for 250 Church Associates, LLC and 250 Church Group, LLC, respondents.
Before: Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ.
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). It must tender evidence that it was not negligent ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Greenidge v HRH Constr. Corp., 279 AD2d 400, 402).