Rannov.Cantor

Supreme Court, Appellate Division, Second Department, New York.Jun 3, 2015
9 N.Y.S.3d 586 (N.Y. App. Div. 2015)
9 N.Y.S.3d 586129 A.D.3d 6992015 N.Y. Slip Op. 4628

06-03-2015

Glen RANNO, plaintiff, v. Joseph M. CANTOR, et al., respondents, James Cinevert, et al., appellants (and a third-party action).

Adams, Hanson, Rego, Kaplan & Fishbein, Albany, N.Y. (Paul G. Hanson of counsel), for appellants. Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola and Gerard Ferrara of counsel), for respondents.


Adams, Hanson, Rego, Kaplan & Fishbein, Albany, N.Y. (Paul G. Hanson of counsel), for appellants.

Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola and Gerard Ferrara of counsel), for respondents.

Opinion In an action to recover damages for personal injuries and injury to property, the defendants James Cinevert and TF Victors Trucking appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered July 23, 2014, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“ ‘As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense’ ” (Mennerich v. Esposito, 4 A.D.3d 399, 400, 772 N.Y.S.2d 91, quoting George Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894 ; see River Ridge Living Ctr., LLC v. ADL Data Sys., Inc., 98 A.D.3d 724, 950 N.Y.S.2d 179 ; Alizio v. Feldman, 82 A.D.3d 804, 804, 918 N.Y.S.2d 218 ).

Here, in support of their motion, the appellants merely pointed to gaps in their opponents' proof and failed to affirmatively establish, prima facie, that the defendant James Cinevert was not negligent in the operation of TF Victors Trucking's vehicle, or that such negligence was not a proximate cause of the accident (see Velasquez v. Gomez, 44 A.D.3d 649, 650, 843 N.Y.S.2d 368 ). Cinevert had been precluded from testifying at trial based upon his failure to appear for examinations before trial, and the other parties presented conflicting evidence concerning the events leading up to the accident (see generally Truckenmiller v. Duran, 125 A.D.3d 639, 3 N.Y.S.3d 367 ; Matos v. Tai, 124 A.D.3d 848, 998 N.Y.S.2d 905 ; Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709–710, 2 N.Y.S.3d 526 ).

In light of the appellants' failure to meet their prima facie burden, we need not review the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ENG, P.J., HALL, COHEN and BARROS, JJ., concur.