Opinion
No. 2009-01780.
October 13, 2009.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated January 5, 2009, which denied its motion for summary judgment dismissing the complaint.
Hammill, O'Brien, Croutier, Dempsey, Pender Koehler, P.C., Syosset, N.Y. (Anton Piotroski and Richard C. Koehler of counsel), for appellant.
Brecher Fishman Pasternack Walsh Tilker Ziegler, P.C., New York, N.Y. (Diamond and Diamond, LLC [Stuart Diamond], of counsel), for respondent.
Before: Fisher, J.P., Covello, Angiolillo and Roman, JJ., concur.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when a "liftgate" attached to the back of a truck owned by his employer malfunctioned. The plaintiff alleges that the defendant improperly performed a particular repair to the liftgate before the accident and that he was injured as a result thereof. The repair was performed pursuant to a contract between the defendant and the plaintiffs employer,
The defendant demonstrated its entitlement to judgment as a matter of law by submitting evidence establishing that it owed no duty of care to the plaintiff ( see Stiver v Good Fair Carting Moving, Inc., 9 NY3d 253, 257; Church v Callanan Indus., 99 NY2d 104, 111; Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, in opposition, the plaintiff raised a triable issue of fact as to whether the defendant, in performing the repair, failed to exercise reasonable care in the performance of its contractual duties and launched a force or instrument of harm ( see Bienaime v Reyer, 41 AD3d 400, 403; Ocampo v Abetta Boiler Welding Serv., Inc., 33 AD3d 332; Davilmar v City of New York, 7 AD3d 559, 560-561). Accordingly, the Supreme Court correctly denied the defendant's motion for summary judgment dismissing the complaint.