Hunley v. University of Rochester Strong Memorial Hospital

—Appeal from an order of Supreme Court, Monroe County (Fisher, J.), entered October 16, 2001, which denied defendant’s motion seeking summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint. In support of the motion, defendant contended that plaintiff would be unable to prove negligence or causation because plaintiff’s testimony at trial would be speculative. “It is well established, however, that ‘[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof ” (Dodge v City of Hornell Indus. Dev. Agency, 286 AD2d 902, 903, quoting Orcutt v American Linen Supply Co., 212 AD2d 979, 980; see Kajfasz v Wal-Mart Stores, 288 AD2d 902). Defendant failed to meet its initial burden of establishing as a matter of law that it was not negligent (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ) or that its alleged negligence was not a proximate cause of plaintiff’s injuries (see Dodge, 286 AD2d at 903; Kanney v Goodyear Tire & Rubber Co., 245 AD2d 1034, 1036). Therefore, the burden never shifted to plaintiff to raise an issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Present—Pine, J.P., Hurlbutt, Burns, Gorski and Lawton, JJ.