Defendant's assertion that he is entitled to summary judgment because plaintiff did not serve an expert affidavit by the court-ordered deadline constitutes an effort to point out gaps in the plaintiff's proof. Gaps in plaintiff's proof, however, cannot serve as a basis to grant defendant's motion, on which, as the moving party, he bears the burden.
Allen v. Thompson, NY Slip Op 02771 (1st Dep't May 5, 2026)
