Xu v. 688 Sixth Avenue Realty Co.

In a consolidated action to recover damages for personal injuries, the defendant Bitteto Pizza Corp., doing business as Maffei Pizza Restaurant, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated March 16, 2004, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs. The plaintiff allegedly fell into a basement through open cellar doors in a sidewalk. The defendant Bitteto Pizza Corp., doing business as Maffei Pizza Restaurant (hereinafter the appellant), was one of the retail tenants of the building abutting the sidewalk and allegedly used the cellar doors to gain entry to the basement. Unlike the other retail tenants, the appellant was responsible for keeping the cellar doors locked. The Supreme Court properly denied the appellant’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The appellant failed to meet its initial burden as the movant of establishing, prima facie, its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). This burden could not be satisfied merely by pointing out gaps in the plaintiff’s case as here (see Nationwide Prop. Cas. v Nestor, 6 AD3d 409 [2004]; Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387 [2004]). In any event, evidence sufficient to raise a triable issue of fact and the need for further discovery was submitted. Schmidt, J.P., Mastro, Rivera and Skelos, JJ., concur.