On April 3, 2024, the Second Department issued a decision in Incorporated Vil. of Freeport v. Albrecht, Viggiano, Zurich & Co., P.C., 2024 NY Slip Op. 01800, holding that to prevail on summary judgment, a defendant must establish a factual basis for non-liability and not just identify gaps in the plaintiff’s case, explaining:
The Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the first cause of action, alleging accounting malpractice, the second cause of action, alleging breach of contract, the fifth cause of action, alleging negligent misrepresentation, and the seventh cause of action, alleging breach of fiduciary duty. A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case. Rather, the prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings. Here, the defendants failed to satisfy their prima facie burden by simply pointing to alleged deficiencies in the plaintiff’s proof. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law with respect to these causes of action, the burden never shifted to the plaintiff to raise a triable issue of fact, and the court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the first, second, fifth, and seventh causes of action.
(Internal quotations and citations omitted).