DECISION/ORDER In her complaint and verified bill of particulars (the BP), plaintiff alleges that on April 24, 2010 she was being treated at defendant hospital. When a nurse employed by defendant changed the bed sheets, she directed plaintiff to sit on the toilet seat until the sheets had been changed. After plaintiff had waited for several minutes, the toilet broke and plaintiff fell, resulting in injuries. The BP states that defendant was aware of the compromised condition of the toilet and allowed it to remain in disrepair, and thus is responsible for the injuries. The parties have completed discovery and the case is on the trial calendar. Now, defendant moves for summary judgment dismissing the case. Defendant argues that the complaint and BP are impermissibly vague, and that not until the BP does plaintiff state that the alleged defect was with the toilet. Furthermore, defendant states, plaintiff and a friend had used the toilet previously without incident, and the toilet had flushed properly and had not broken on those prior occasions. Defendant suggests that the toilet broke because plaintiff was obese and not because of a defect. Defendant states that plaintiff did not indicate the nature of the problem with the toilet in her pleadings, and that plaintiff has not presented evidence supporting her contention that the toilet was defective or that defendant had actual or constructive notice of any problem. Finally, defendant requests that, if the Court does not grant summary judgment, it alternatively strikes the words “reckless” and “careless” from the complaint. According to defendant, these words suggest the type of deliberate misconduct which would support a claim for punitive damages. As plaintiff does not seek punitive damages, defendant continues, the words are unduly prejudicial.DiscussionIt is not the role of this Court to determine who has the stronger case — or whether, in fact, plaintiff’s claims have merit. Instead, on a motion for summary judgment, the Court must determine whether defendant has demonstrated, prima facie, that it has the right to prevail as a matter of law (see Kershaw v. Hospital for Special Surgery, 114 AD3d 75, 81-82 [1st Dept 2013]). Defendant has the burden of doing so by the submission of “evidentiary proof in admissible form” (Zuckerman v. City of New York, 49 NY2d 557, 572 [1980]). Moreover, defendant cannot “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, 650-51 [2nd Dept 2007] [citation and internal quotation marks omitted]). Unless defendant satisfies this burden, this Court cannot consider the sufficiency of the plaintiff’s case (see id. at 651).After careful consideration, the Court denies defendant’s motion. Defendant’s argument that the complaint and the BP did not specifically identify the nature of the defect or the incidents of notice are more properly considered under CPLR §3211 (a) (7). As defendant properly points out, a complaint generally lays out the allegations and the BP amplifies the pleadings so as to limit discovery and prevent defendant from being surprised during the trial (Harris v. Ariel Transportation Corp., 37 AD3d 308, 309 [1st Dept 2007]). Its purpose is not to provide evidentiary material (see id.). The complaint and the BP generally allege negligence, sufficient prior notice, a problem with the toilet, and a description of plaintiff’s injuries. Defendant’s argument that the pleadings do not set forth the details of these allegations misconstrues plaintiff’s burden with respect to her pleadings. She “need not set forth a matter that is evidentiary in nature, which is more appropriately obtained through depositions and expert disclosure” (id.). The Court further concludes that defendant has not satisfied its evidentiary burden on this summary judgment motion. Instead, all it has done is point to gaps in plaintiff’s evidence; and, as Velasquez states, this does not shift the burden to plaintiff to support her claim (id.). As such, it “improperly attempt[s] to shift [its] burden…onto plaintiff” (Unitrin Advantage Ins. Co. v. 21st Century Pharmacy, Inc., 161 AD3d 495, 495 [1st Dept 2018]). In addition, defendant’s statements, drawn from plaintiff’s deposition transcript, do not eradicate plaintiff’s allegations. The fact that the toilet did not break earlier does not dispose of the case. The fact that plaintiff weighed over 300 pounds does not dispose of the case, especially because an employee of the defendant (who had full knowledge of plaintiff’s obesity) was the person who directed the plaintiff to wait on the toilet seat rather than on a sturdy chair. Defendant’s argument that plaintiff has not shown that defendant had notice of the alleged defect to the toilet again misconstrues plaintiff’s burden here; as this is defendant’s summary judgment motion, it must present affirmative evidence that there was no notice. It is only at that point that plaintiff would be required to lay bare her proof. Finally, the Court notes, defendant’s application to strike the words “reckless” and “careless” from the pleadings lacks merit. These words are commonly included in complaints to support a plaintiff’s allegations of negligence.This Court finds that the defendant did not satisfy its burden and thus, the Court does not determine whether plaintiff’s evidence is adequate to support her claims. Similarly, defendant cannot rely on the lack of discovery that plaintiff conducted, as this relates to the potential holes in the plaintiff’s case and does not relate to defendant’s evidentiary burden here. The Court has considered defendants additional arguments and they are unavailing.Accordingly, it isORDERED that the motion is denied.
