Re v. Amchem Prods., Inc.

Friedman, J.P., Richter, Tom, Oing, Moulton, JJ.

McGivney, Kluger & Cook, P.C., New York (Kerryann M. Cook of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondents.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 28, 2019, which denied defendant Harris Corporation's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Viewing the evidence in the light most favorable to plaintiffs as nonmovants (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), we find that Harris Corporation failed to establish prima facie entitlement to summary judgment.

Defendant cannot meet its initial burden on summary judgment by "merely point[ing] to perceived gaps in plaintiff[s'] proof, rather than submitting evidence showing why his claims fail" (Ricci v A.O. Smith Water Prods. Co., 143 AD3d 516, 516 [1st Dept 2016]; see also Koulermos v A.O. Smith Prods., 137 AD3d 575, 576 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 11, 2019

CLERK