Frank v. Price Chopper Operating Co.

—Order [941] unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action seeking to recover damages for personal injuries sustained by Congetta Frank (plaintiff) when she slipped and fell on a piece of waxed paper in the aisle at defendant’s store. Supreme Court properly denied that part of defendant’s motion seeking summary judgment dismissing the complaint insofar as it is based on the theories that defendant affirmatively created the dangerous condition or had constructive notice of it. It is well established that a party cannot obtain summary judgment “by pointing to gaps in its opponent’s proof’ (Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615; see, Orcutt v American Linen Supply Co., 212 AD2d 979, 980). Defendant failed to meet its initial burden of demonstrating that it did not create the allegedly dangerous condition (see, Telesco v Bateau, 273 AD2d 894) and that the condition was not visible or apparent for a sufficient length of time to enable defendant to discover and correct it (cf., Battaglia v Toys “R” Us, 271 AD2d 627; Tenebruso v Toys "R" Us-NYTEX, 256 AD2d 1236, 1237). Because defendant failed to meet its initial burden, we need not determine the sufficiency of plaintiffs’ opposition to the motion (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Joyes v Buffalo Waterfront Rest. Corp., 262 AD2d 1019, 1019-1020). (Appeal from Order of Supreme Court, Oneida County, Parker, J. — Summary Judgment.) Present— Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.