DeFAZIO v. HAGE

Memorandum:

Plaintiffs commenced this action alleging that Flora DeFazio (plaintiff) tripped and fell while walking across defendant's property to attend a garage sale next door. Plaintiffs allege that a height difference between defendant's driveway and lawn constituted a dangerous condition, causing plaintiff to fall. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. "[E]ven a trivial defect can sometimes have the characteristics of a snare or a trap" ( Herrera v. City of New York, 262 A.D.2d 120), and here defendant "failed to demonstrate the absence of an actionable defect" ( Scala v. Port Jefferson Free Lib., 255 A.D.2d 574). "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 A.D.2d 979, 980). Because defendant failed to meet his burden, we do not consider the adequacy of plaintiffs' opposing papers ( see, LaManna v. Sudbury, Inc., 244 A.D.2d 994).