FOSTER v. CLIFFORD

Order and judgment unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. The proponent of a motion for summary judgment has the burden to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Defendant failed to establish that it did not violate Hornell City Code § 267-5 or that, even if it did violate that provision, such violation was not a cause of the accident. Thus, defendant failed to meet its burden.