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Bryan v. 250 Church Associates

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 31, 2009

MELANIE BRYAN, PLAINTIFF-RESPONDENT,
v.
250 CHURCH ASSOCIATES, LLC, ET AL., DEFENDANTS-RESPONDENTS,
R.C. DOLNER, INC., ET AL., DEFENDANTS,
MAYCO BUILDING SERVICES, INC., DEFENDANT-APPELLANT. [AND A THIRD-PARTY ACTION]

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

18964/04

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 [2003]). It must tender evidence that it was not negligent (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Greenidge v HRH Constr. Corp., 279 AD2d 400, 402 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090331

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