Foster v. Clifford

—Order and judgment unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. The proponent of a motion for summary judgment has the burden to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Defendant failed to establish that it did not violate Hornell City Code § 267-5 or that, even if it did violate that provision, such violation was not a cause of the accident. Thus, defendant failed to meet its burden. (Appeal from Order and Judgment of Supreme Court, Steuben County, Scudder, J. — Summary Judgment.) Present — Lawton, J. P., Hayes, Pigott, Jr., Hurlbutt and Balio, JJ.