merit claim in New York

2015It 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]).

2015It 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]).

2025"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" ( Brown v City of New York , 95 NY2d 389, 392; see Burgos v City of [*2]New York , 202 AD3d 744, 745).

2025The plaintiff appeals. "'To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'" ( Davis v City of New York , 210 AD3d 865, 866 , quoting Brown v City of New York , 95 NY2d 389, 392 ).

2015Ordered that the order is affirmed insofar as appealed from, with costs. “ ‘As a general rule, 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’ ” (Mennerich v Esposito, 4 AD3d 399, 400 [2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see River Ridge Living Ctr., LLC v ADL Data Sys., Inc., 98 AD3d 724 [2012]; Alizio v Feldman, 82 AD3d 804, 804 [2011]).

2013With respect to liability premised on the method or materials of the work, Lockwood contends that “there is no evidence to establish that [it] had the right or authority to control the work performed by either Plaintiff.” “As a general rule, 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.” (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [4th Dept 1992].) Here, Lockwood fails to establi

2026"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (<i>K.J. v City of New York</i>, 156 AD3d 611, 613 ). "'This burden may be satisfied only by the defendant's affirmative demonstration of the merit of the defense, rather than merely by reliance on gaps in the plaintiff['s] case'" (<i>id.</i>, quoting <i>Shafi v Motta</i>, 73 AD3d 729, 730 ). "'A defendant moving for summary judgment in a medical malpractice action must demonstrate the

2017“This burden may be satisfied only by the defendant’s affirmative demonstration of the merit of the defense, rather than merely by reliance on gaps in the plaintiffs’ case” (Shaft v Motta, 73 AD3d 729, 730 [2010]).

2013As a general rule, 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 (see Dalton v Educational Testing Serv., 294 AD2d 462, 463 [2002]). “ ‘As with the construction of contracts generally, “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” ’ ” (Richner Communications, Inc. v Tower Ins.

2013As a general rule, 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 (see Dalton v Educational Testing Serv., 294 AD2d 462, 463 [2002]). “ ‘As with the construction of contracts generally, “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” ’ ” (Richner Communications, Inc. v Tower Ins.

2015Inasmuch as the Lakeside defendants failed to meet their initial burden on the motion, there is no need to consider the adequacy of North Penn’s submissions in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

2015Inasmuch as the Lakeside defendants failed to meet their initial burden on the motion, there is no need to consider the adequacy of North Penn’s submissions in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

2017On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963, 964 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Pace v International Bus.

2015It must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Pace v International Bus.

2013Indeed, “[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” (Velasquez v Gomez, 44 AD3d 649 , 650-651 [2007], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see Fields v Village of Sag Harbor, 92 AD3d 718 [2012]; Calderone v Town of Cortlandt, 15 AD3d 602 [2005]).

2013Indeed, “[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” (Velasquez v Gomez, 44 AD3d 649 , 650-651 [2007], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see Fields v Village of Sag Harbor, 92 AD3d 718 [2012]; Calderone v Town of Cortlandt, 15 AD3d 602 [2005]).

2024DISCUSSION Notice of Claim Service of a notice of claim is required prior to the commencement of a tort action against a municipal to enable "authorities to investigate, collect evidence and evaluate the merit of a claim. . . ." Davis v City of New York , 153 AD3d 658, 660 (2d Dept 2017) (internal quotation marks and citation omitted); see GML § 50-e (1) (a).

2024DISCUSSION Notice of Claim Service of a notice of claim is required prior to the commencement of a tort action against a municipal to enable "authorities to investigate, collect evidence and evaluate the merit of a claim. . . ." Davis v City of New York , 153 AD3d 658, 660 (2d Dept 2017) (internal quotation marks and citation omitted); see GML § 50-e (1) (a).

2017On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963, 964 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Pace v International Bus.

2015It must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Pace v International Bus.

2016“On a summary judgment motion, a moving [party] does not meet its burden of affirmatively establishing its entitlement to summary judgment by merely pointing to gaps in [its opponent’s] case; rather, it must affirmatively demonstrate the merit of its defense” (Vanderhurst v Nobile, 130 AD3d 716, 717 [2015]).

2016“On a summary judgment motion, a moving defendant does not meet its burden of affirmatively establishing its entitlement to summary judgment by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its defense” (Vanderhurst v Nobile, 130 AD3d 716, 717 [2015]; see Spota v Love, 140 AD3d 730, 730-731 [2016]; Setter v Fire Is.

2015It 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]).

2015It 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]).

2024Ctr. , 64 NY2d 851, 853 ; Zuckerman v City of New York , 49 NY2d 557, 559 ; Friends of Animals v Associated Fur Mfrs. , 46 NY2d 1065, 1067 ). "[A]s a general rule, a party does not meet its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively [*2]demonstrate the merit of its claim or defense" ( Doe v Orange-Ulster Bd. of Coop.

2018The moving defendant must affirmatively demonstrate the merit of its claim or defense ( see Zuckerman v City of New York , 49 NY2d 557 , 562 ; Collado v Jiacono , 126 AD3d 927, 928 ).

2014A party seeking summary judgment bears the burden of proving the absence of any triable issues of fact and must carry this burden not “ ‘by pointing to gaps in its opponent’s proof, but [by] affirmatively demonstrat[ing] the merit of its claim or defense’ ” (Velasquez v Gomez, 44 AD3d 649 , 650-651 [2007], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; accord Deutsche Bank Natl.

2014A party seeking summary judgment bears the burden of proving the absence of any triable issues of fact and must carry this burden not “ ‘by pointing to gaps in its opponent’s proof, but [by] affirmatively demonstrat[ing] the merit of its claim or defense’ ” (Velasquez v Gomez, 44 AD3d 649 , 650-651 [2007], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; accord Deutsche Bank Natl.

2025Finally, as a general rule, 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 ( Calderone v Town of Cortlandt , 15 AD3d 602 [2d Dept 2005]).

2013Indeed, “[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” (Velasquez v Gomez, 44 AD3d 649 , 650-651 [2007], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see Fields v Village of Sag Harbor, 92 AD3d 718 [2012]; Calderone v Town of Cortlandt, 15 AD3d 602 [2005]).

2025The plaintiff appeals. "'To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'" ( Davis v City of New York , 210 AD3d 865, 866 , quoting Brown v City of New York , 95 NY2d 389, 392 ).

2024The plaintiff appeals. "'To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'" ( Davis v City of New York , 210 AD3d 865, 866 , quoting Brown v City of New York , 95 NY2d 389, 392 ).

2024Ctr. , 64 NY2d 851, 853 ; Zuckerman v City of New York , 49 NY2d 557, 559 ; Friends of Animals v Associated Fur Mfrs. , 46 NY2d 1065, 1067 ). "[A]s a general rule, a party does not meet its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively [*2]demonstrate the merit of its claim or defense" ( Doe v Orange-Ulster Bd. of Coop.

2007Ctr., 64 NY2d 851, 852 [1985]). “[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its op ponent’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]).

2024Valley Brew Pub, Inc. , 301 AD2d 570 [2d Dept 2003]). "[A]s a general rule, 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" ( Martinez v 1261 Realty Co., LLC , 121 AD3d 955 [2d Dept 2014]).

2020However, we agree with the Supreme Court's determination to deny the defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him. "[A]s a general rule, 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" ( Martinez v 1261 Realty Co., LLC , 121 AD3d 955, 956 [internal quotation marks omitted]).

2023Under the circumstances, plaintiff has set forth "a proper case" for a declaration that the 2019 account beneficiary form (designating defendant as sole beneficiary) is invalid and that the 2010 form (designating plaintiff as sole beneficiary) controls, and, on this motion to dismiss, "the merit of the claim is not a relevant factor and the action should be allowed to proceed" ( Law Research Serv. v Honeywell, Inc. , 31 AD2d 900, 901 [1st Dept 1969]).

2023Under the circumstances, plaintiff has set forth "a proper case" for a declaration that the 2019 account beneficiary form (designating defendant as sole beneficiary) is invalid and that the 2010 form (designating plaintiff as sole beneficiary) controls, and, on this motion to dismiss, "the merit of the claim is not a relevant factor and the action should be allowed to proceed" ( Law Research Serv. v Honeywell, Inc. , 31 AD2d 900, 901 [1st Dept 1969]).

2025Corp. , 68 AD3d 583, 584 [1st Dept 2009]). [FN11] Notably, in this respect, Rock Group cannot meet its prima facie burden by pointing to gaps in the Owner Defendants' proof, but rather must affirmatively establish the merit of its claim or defense, which it has not done here ( see C.M. v West Babylon Union Free Sch.

2025Corp. , 68 AD3d 583, 584 [1st Dept 2009]). [FN11] Notably, in this respect, Rock Group cannot meet its prima facie burden by pointing to gaps in the Owner Defendants' proof, but rather must affirmatively establish the merit of its claim or defense, which it has not done here ( see C.M. v West Babylon Union Free Sch.

2025General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, "the nature of the claim" and "the time when, the place where and the manner in which the claim arose" ( id. ; see Washington v City of New York , 190 AD3d 1009, 1011).

2024"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" within 90 days after the claim arises ( Washington v City of New York , 190 AD3d 1009, 1010 [internal quotation marks omitted]; see General Municipal Law § 50-e[1][a]; Brown v City of New York , 95 NY2d 389, 392 ; Burgos v City of New York , 202 AD3d 744, 745 ). [*2]Pursuant to General Municipal Law § 50-e(2), "[a] notice of claim must set forth, inter alia, the nature of the cla

2018The moving defendant must affirmatively demonstrate the merit of its claim or defense ( see Zuckerman v City of New York , 49 NY2d 557 , 562 ; Collado v Jiacono , 126 AD3d 927, 928 ).

2015On a summary judgment motion, a moving defendant does not meet its burden of affirmatively establishing its entitlement to summary judgment by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its defense (see Collado v Jiacono, 126 AD3d 927 [2015]).

2025"On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiffs case; rather, it must affirmatively demonstrate the merit of its claim or defense" (Vumbico v Estate of Wiltse, 156 AD3d 939,941 [2017]).

2024"On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff's case; rather, it must affirmatively demonstrate the merit of its claim or defense" ( Vumbico v Estate of Wiltse , 156 AD3d 939, 941 ). "'A mortgagee's interest in the property is protected unless it has notice of a previous fraud affecting the title of its grantor'" ( Stout St.

2025"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" ( Brown v City of New York , 95 NY2d 389, 392; see Burgos v City of [*2]New York , 202 AD3d 744, 745).

2025"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" ( Brown v City of New York , 95 NY2d 389, 392; see Burgos v City of [*2]New York , 202 AD3d 744, 745).

2021A notice of claim must set forth, among other things, "the nature of the claim" and "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e[2]). "'The requirements of the statute are met when the notice describes the [incident] with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim'" ( Conn v Tutor Perini Corp. , 174 AD3d 680 , 681, quoting Palmer v Society for Seamen's Children , 88 AD3d 970, 971 ). "[I]n making a determination on the sufficiency of a notice of c

2020The General Municipal Law requires that the notice set forth, among other things, "the nature of the claim," and "the time when, the place where and the manner in which the claim arose" [*2](General Municipal Law § 50-e[2]; see Brown v City of New York , 95 NY2d at 393 ; Palmer v Society for Seamen's Children , 88 AD3d 970, 971 ).