Sutherland v. Whylie

In an action to recover damages for personal injuries, the defendant Sylvia Whylie appeals from an order of the Supreme Court, Kings County (Hall, J.), dated December 22, 2000, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. Ordered that the order is affirmed, with costs. As the party seeking summary judgment, the appellant had the burden of demonstrating her entitlement thereto as a matter of law (see, Smith v AT&T Resource Mgt. Corp., 259 AD2d 480). Moreover, “ ‘[a]s 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’ ” (Pace v International Bus. Mach. Corp., 248 AD2d 690, 691, quoting Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615; see, Dodge v City of Hornell Indus. Dev. Agency, 286 AD2d 902; Russell v Kraft, Inc., 284 AD2d 386). The appellant failed to establish, prima facie, her alleged freedom from liability as an out-of-possession landowner (see, Mikolajczyk v Morgan Contrs., 273 AD2d 864; cf., McClenan v Brancato Iron & Fence Works, 282 AD2d 722; Dorestant v Snow, Inc., 274 AD2d 542). Thus, the Supreme Court properly denied her motion for summary judgment. The appellant’s remaining contentions are without merit. Florio, J.P., S. Miller, McGinity and Adams, JJ., concur.