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cited 6× by 6 distinct cases, 2013–2014 ·
…must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent's proof
at p. 980
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Topic ↗
cited 5× by 5 distinct cases, 2016–2023 ·
…a moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof
at p. 980
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Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996
2011
2026
Top citers, strongest first. 43 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
Hazlett v. Niezgoda
Defendant offered no evidence to the contrary, and it is well established that a party moving for summary judgment "must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Orcutt v American Linen Supply Co. , 212 AD2d 979, 980 [4th Dept 1995]; see Freeland v Erie County , 204 AD3d 1465, 1467 [4th Dept 2022]).
discussed
Cited as authority (rule)
Spring v. Allegany-Limestone Cent. Sch. Dist.
"A moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Orcutt v American Linen Supply Co. , 212 AD2d 979, 980 [4th Dept 1995]; see Freeland v Erie County , 204 AD3d 1465, 1467 [4th Dept 2022]; Martin v United Parcel Serv. of Am., Inc. , 104 AD3d 1173 , 1174 [4th Dept 2013]).
discussed
Cited as authority (rule)
Freeland v. Erie County
It is well settled that "[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Orcutt v [*2]American Linen Supply Co. , 212 AD2d 979, 980 [4th Dept 1995]; see Rachlin v Michaels Arts & Crafts , 118 AD3d 1391 , 1392 [4th Dept 2014]).
discussed
Cited as authority (rule)
Gardner v. Zammit
To the extent that plaintiff contends that he is entitled to summary judgment based on the lack of evidence regarding the value of the estate, we note that it is well settled that "[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Orcutt v American Linen Supply Co. , 212 AD2d 979, 980 [4th Dept 1995]).
discussed
Cited as authority (rule)
Wolf v. Ledcor Constr. Inc.
Co., Inc. , 134 AD3d 1405 , 1407 [4th Dept 2015]; Fazekas v Time Warner Cable, Inc. , 132 AD3d 1401, 1403 [4th Dept 2015]; Bernard v Town of Lysander , 124 AD3d 1289, 1290 [4th Dept 2015]; Custer v Jordan , 107 AD3d 1555, 1558 [4th Dept 2013]; Miles v Great Lakes Cheese of N.Y., Inc. , 103 AD3d 1165 , 1167 [4th Dept 2013]; Kin v State of New York , 101 AD3d 1606, 1607 [4th Dept 2012]; Kirbis v LPCiminelli, Inc. , 90 AD3d 1581, 1582 [4th Dept 2011]; Dean v City of Utica , 75 AD3d 1130, 1131 [4th Dept 2010]; Chacon-Chavez v City of Rochester , 72 AD3d 1636, 1636 [4th Dept 2010]; Arnold v Baldwin…
discussed
Cited as authority (rule)
Rodrigues v. Lesser
It is well settled that “[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Jackson v Brown, 26 AD3d 804, 805 [2006]) and, here, as in Jackson , defendant failed to establish “the absence of a lead paint condition at the residence” (Jackson, 26 AD3d at 805 ; see Aldrich v County of Oneida, 299 AD2d 938, 939 [2002]).
discussed
Cited as authority (rule)
Rodrigues v. Lesser
It is well settled that “[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Jackson v Brown, 26 AD3d 804, 805 [2006]) and, here, as in Jackson , defendant failed to establish “the absence of a lead paint condition at the residence” (Jackson, 26 AD3d at 805 ; see Aldrich v County of Oneida, 299 AD2d 938, 939 [2002]).
discussed
Cited as authority (rule)
Paternostro v. Advance Sanitation, Inc.
It is equally well settled that, in seeking summary judgment, “[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” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]).
discussed
Cited as authority (rule)
Paternostro v. Advance Sanitation, Inc.
It is equally well settled that, in seeking summary judgment, “[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” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]).
cited
Cited as authority (rule)
Rachlin v. Michaels Arts & Crafts
Co., 86 AD3d 948, 950 [2011]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
Rachlin v. Michaels Arts & Crafts
Co., 86 AD3d 948, 950 [2011]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited as authority (rule)
Claypoole v. Twin City Ambulance Corp.
Although defendant further contends that plaintiffs cannot establish that defendant’s actions were a proximate cause of plaintiffs injury, a defendant seeking summary judgment “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see New York Mun.
discussed
Cited as authority (rule)
Claypoole v. Twin City Ambulance Corp.
Although defendant further contends that plaintiffs cannot establish that defendant’s actions were a proximate cause of plaintiffs injury, a defendant seeking summary judgment “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see New York Mun.
discussed
Cited as authority (rule)
New York Municipal Insurance Reciprocal v. Casella Construction Inc.
Furthermore, it is well settled that, in seeking summary judgment dismissing a complaint, a defendant “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]; Atkins v United Ref.
discussed
Cited as authority (rule)
New York Municipal Insurance Reciprocal v. Casella Construction Inc.
Furthermore, it is well settled that, in seeking summary judgment dismissing a complaint, a defendant “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]; Atkins v United Ref.
discussed
Cited as authority (rule)
DEANGELIS, WILLIAM JOSEPH v. MARTENS FARMS, LLC
It is well settled that a moving party “must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Lane v Texas Roadhouse Holdings, LLC, 96 AD3d 1364, 1364 [2012]; Dodge v City of Hornell Indus.
cited
Cited as authority (rule)
Andrews v. County of Cayuga
Holdings, Inc., 71 AD3d 1459, 1459-1460 [2010] [internal quotation marks omit ted]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
Route 104 & Route 21 Development, Inc. v. Chevron U.S.A., Inc.
Co., 86 AD3d 948, 950 [2011]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
Andrews v. County of Cayuga
Holdings, Inc., 71 AD3d 1459, 1459-1460 [2010] [internal quotation marks omit ted]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
LANE, GERTRUDE A. v. TEXAS ROADHOUSE HOLDINGS, LLC
Agency, 286 AD2d 902 , 903 [2001], quoting Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Brown v Smith, 85 AD3d 1648, 1649 [2011]).
discussed
Cited as authority (rule)
Baity v. General Electric Co.
It is well established that “[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponents’] proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Swimm v Bratt, 15 AD3d 976, 977 [2005]).
discussed
Cited as authority (rule)
Brown v. Smith
It is also well settled that, in seeking summary judgment dismissing a complaint, “[a] moving party must affirmatively establish the merits of [his or her] . . . defense and does not meet [his or her] burden by noting gaps in [the] opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Frank v Price Chopper Operating Co., 275 AD2d 940 [2000]).
discussed
Cited as authority (rule)
BISHOP, DAVID A. v. CURRY, ASHELY R.
It is well established that, in moving for summary judgment, a “party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited as authority (rule)
Britton v. Diprima
It is well settled that defendant may not establish his entitlement to summary judgment by pointing to gaps in plaintiffs proof (see Baines v G&D Ventures, Inc., 64 AD3d 528, 529 [2009]; Seivert v Kingpin Enters., Inc., 55 AD3d 1406, 1407 [2008]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
Turnmire v. Concrete Applied Technologies Corp.
Higgins v Pope, 37 AD3d 1086, 1087 [2007]; Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
McGill v. United Parcel Service, Inc.
Agency, 286 AD2d 902 , 903 [2001], quoting Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see e.g.
discussed
Cited as authority (rule)
Ramos v. Howard Industries, Inc.
Although the majority notes the well-settled principle that a defendant cannot meet its burden merely by pointing to gaps in its opponent’s proof, defendant did not attempt to do so here (cf. Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited as authority (rule)
Higgins v. Pope
It is well settled that, in moving for summary judgment, defendants “must affirmatively establish the merits of [their] . . . defense and [can]not meet [their] burden by noting gaps in [their] opponent’s proof’ (Or cutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Fuller v Ryder Truck Rental, Inc., 34 AD3d 1325 [2006]; Allen v General Elec.
discussed
Cited as authority (rule)
Fuller v. Ryder Truck Rental, Inc.
We note at the outset that defendant, as the movant, “must affirmatively establish the merits of its . . . defense[s] and [can]not meet its burden by noting gaps in its opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited as authority (rule)
Allen v. General Electric Co.
In order to meet their burden of establishing their entitlement to summary judgment dismissing those claims, defendants had to present evidence that “affirmatively establish[ed] the merits of [their] . . . defense and [could] not meet [their] burden by noting gaps in [their] opponent [s’] proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Swimm v Bratt, 15 AD3d 976, 977 [2005]).
discussed
Cited as authority (rule)
Jackson v. Brown
Defendants did not demonstrate the absence of a lead paint condition at the residence and, as we have repeatedly held, “[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Giangrosso v Kummer Dev.
discussed
Cited as authority (rule)
Swimm v. Bratt
It is well established 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’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Aldrich v County of Oneida, 299 AD2d 938, 939 [2002]).
discussed
Cited as authority (rule)
Giangrosso v. Kummer Development Corp.
In any event, that contention lacks merit because “[a] moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
cited
Cited as authority (rule)
Edwards v. Arlington Mall Associates
Agency, 286 AD2d 902 , 903 [2001], quoting Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Hunley, 294 AD2d 923 [2002]; Kajfasz v WalMart Stores, 288 AD2d 902 [2001]).
cited
Cited as authority (rule)
Romanowski v. Yahr
“A moving party . . . does not meet its burden by noting gaps in [her] opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited as authority (rule)
Connors v. Wilmorite, Inc.
We reject defendants’ contention that plaintiff’s action was not a foreseeable consequence of the situation created by the existence of the hole in the floor (see, Orcutt v American Linen Supply Co., supra, at 980).
discussed
Cited "see"
Universal Resources Holdings, Inc. v. North Penn Pipe & Supply, Inc.
It is well settled that “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” (George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited "see"
UNIVERSAL RESOURCES HOLDINGS, INC. v. NORTH PENN PIPE & SUPPLY, INC.
It is well settled that “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” (George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 ; see Orcutt v American Linen Supply Co., 212 AD2d 979, 980 ).
discussed
Cited "see"
Universal Resources Holdings, Inc. v. North Penn Pipe & Supply, Inc.
It is well settled that “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” (George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited "see"
VINCENT AUTOMOTIVE, INC. v. CHEVRON U.S.A., INC.
Nor did defendant meet its burden of establishing that it did not cause or contribute to the contamination by asserting that plaintiffs have “no evidence” with respect thereto (Route 104 & Rte. 21 Dev., Inc., 96 AD3d at 1492 ). “[Defendant cannot establish its entitlement to judgment as a matter of law simply by pointing to gaps in plaintiff[s’] proof’ (id.; see Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited "see"
Latona v. Roberson
Indeed, defendants’ expert merely stated that she found “no evidence in the record to support plaintiffs claim that [CHS] was negligent,” and defendants cannot establish their entitlement to summary judgment with respect to CHS “by noting alleged gaps in plaintiff’s] proof’ (Seivert v Kingpin Enters., Inc., 55 AD3d 1406, 1407 [2008]; see generally Orcutt v American Linen Supply Co., 212 AD2d 979 [1995]).
discussed
Cited "see"
James v. Steinmiller
Although defendant submitted evidence establishing that he had no knowledge of the substance and that it could not be identified, even by plaintiff, defendant “cannot establish [his] entitlement to summary judgment ... by noting alleged gaps in plaintiffl’s] proof” (Seivert v Kingpin Enters., Inc., 55 AD3d 1406, 1407 [2008]; see Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]).
discussed
Cited "see"
Frank v. Price Chopper Operating Co.
It is well established that a party cannot obtain summary judgment “by pointing to gaps in its opponent’s proof’ (Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 ; see, Orcutt v American Linen Supply Co., 212 AD2d 979, 980 ).
Retrieving the full opinion text from the archive…
Alan J. Orcutt
v.
American Linen Supply Company, , Defendant American Linen Supply Company, Third-Party Plaintiff-Respondent v. Allied Electric Company, Inc., Third-Party Defendant-Respondent, and Taylor Rental Center, Inc., Third-Party Defendants-Respondents-Appellants
v.
American Linen Supply Company, , Defendant American Linen Supply Company, Third-Party Plaintiff-Respondent v. Allied Electric Company, Inc., Third-Party Defendant-Respondent, and Taylor Rental Center, Inc., Third-Party Defendants-Respondents-Appellants
Appellate Division of the Supreme Court of the State of New York.
Feb 3, 1995.
Cited by 64 opinions | Published
—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying plaintiff’s motion for partial summary judgment on liability under Labor Law § 240. The court denied the motion without prejudice to renew "after a reasonable time for discovery on the issue of causation.” The court properly found that plaintiff met his burden of proving a violation of Labor Law § 240 and that the violation was a proximate cause of his injuries. It is undisputed that plaintiff, who was operating a man-lift and was about 30 feet from the ground, was working at an elevated work site, that there were[*980] no barricades or warnings around the holes in the floor, and that plaintiff fell when he drove the man-lift into a hole. Plaintiff’s act of driving the man-lift into the hole was a " 'foreseeable consequence of the situation created by the defendant’s negligence’ ” (Boshart v City of Buffalo, 185 AD2d 706, 707, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 562). American Linen Supply Company (defendant) failed to raise a triable issue of fact concerning proximate cause or to show how further discovery would affect plaintiff’s entitlement to summary judgment. Defendant’s argument that further discovery is needed relates to the liability of defendants and third-party defendants.
We conclude that the court properly denied the motions of third-party defendants Taylor Rental Center, Inc., and StratoLift, Inc., for summary judgment dismissing the third-party complaint, but for a different reason. Neither movant submitted any evidentiary proof in admissible form to show that the man-lift was not defective or dangerous, and thus the movants failed to meet their initial burdens. A moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof (Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614). (Appeals from Order of Supreme Court, Onondaga County, Stone, J.—Labor Law § 240.) Present—Pine, J. P., Fallon, Wesley, Callahan and Davis, JJ.