Defendant Failed to Meet Its Burden on Its Summary Judgment Motion—Not Enough to Point to Deficiencies in Plaintiff’s Proof
The Fourth Department determined Supreme Court erred in dismissing a lawsuit against a residential care facility based upon plaintiff’s decedent’s being fatally injured by another resident. The court noted that the motion for summary judgment was brought by the defendant and it was therefore not enough for the defendant to allege only deficiencies in plaintiff’s proof:
We conclude that the court erred in granting defendant’s motion because defendant “failed to come forward with any proof to rebut plaintiff[‘s] allegations and merely focused on the claimed deficiency in plaintiff[‘s] proof” … . In support of its motion, defendant repeatedly argued that plaintiff “failed to satisfy [her] burden” of establishing a prima facie case of negligence because of the “absence of proof[]” with respect to duty, breach of duty, foreseeability, and proximate cause. Those arguments are misplaced, however, because “defendant, not plaintiff, moved for summary judgment and defendant cannot meet its burden by relying on claimed deficienc[ies] in plaintiff[‘s] proof’ ” … . Although plaintiff will bear the burden of establishing defendant’s negligence at trial, “on this motion for summary judgment, defendant has the burden of establishing its entitlement to judgment as a matter of law” … , and we conclude that defendant failed to meet that burden … .
Defendant concedes that there was an altercation between decedent and another resident, and that such altercation resulted in decedent’s injuries. With respect to the foreseeability of the resident’s alleged conduct, “defendant[], as the part[y] seeking summary judgment, bore the burden of establishing that the assault on [decedent] was not foreseeable” … . Defendant, however, “failed to submit any evidence to show that [it] lacked knowledge of any danger presented by the [resident],” and thus failed to establish its entitlement to judgment as a matter of law … . Schnorr v Emeritus Corp, 2014 NY Slip Op 04314, 4th Dept 6-13-14