Opinion
2001-03449
Argued January 28, 2002.
March 5, 2002.
In an action to recover damages for personal injuries, etc., the defendant E.E. Cruz Company, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered March 15, 2001, as, upon granting renewal, adhered to its original determination in an order dated December 22, 1998, denying its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
O'Connor, O'Connor, Hintz Deveney, LLP, Garden City, N.Y. (Robert E. O'Connor and Michael T. Reagan of counsel), for appellant.
Harry Organek, Roslyn, N.Y., for plaintiffs-respondents.
Before: SONDRA MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs payable to the plaintiffs-respondents.
The Supreme Court erred in relying upon the legal opinions contained in the affidavit of the plaintiffs' expert as to the meaning of the subject contract and the legal obligations of the parties under the contract (see, Marx Co. v. Diners Club, Inc., 550 F.2d 505, 508-510, cert denied 434 U.S. 861; Colon v. Rent-A-Center, 276 A.D.2d 58, 61). Nevertheless, the Supreme Court correctly adhered to its original determination denying the appellant's motion for summary judgment, since a triable issue of fact exists even without the affidavit of the plaintiffs' expert (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Reiner v. Wenig, 269 A.D.2d 379; cf., W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162-163). For example, the appellant did not establish as a matter of law that it owed no duty to the injured plaintiff. If the contract is interpreted as the plaintiffs urge, or if the appellant negligently caused the leak in question, the record does not conclusively foreclose the plaintiffs' recovery against the appellant.
The appellant's remaining contentions are without merit.
S. MILLER, J.P., LUCIANO, SCHMIDT and CRANE, JJ., concur.