| Pesantes v Komatsu Forklift USA, Inc. |
| 2009 NY Slip Op 00520 [58 AD3d 823] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Joffre Pesantes, Respondent, v Komatsu Forklift USA,Inc., Appellant, et al., Defendant. (And Third-Party Actions.) |
—[*1] Dell & Little, LLP, Uniondale, N.Y. (John S. McDonnell of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Komatsu Forklift USA,Inc., appeals from so much of an order of the Supreme Court, Nassau County (Phelan, J.), datedNovember 28, 2007, as denied that branch of its motion which was for summary judgmentdismissing so much of the complaint as alleged design defect and failure to warn insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellant's motion which was for summary judgment dismissing so much of thecomplaint as alleged design defect and failure to warn insofar as asserted against it is granted.
In opposition to the prima facie showing of entitlement to judgment as a matter of law by thedefendant Komatsu Forklift USA, Inc. (hereinafter the appellant), the plaintiff raised a newtheory of liability. Although "[a] court may properly look beyond the allegations in thecomplaint and deny summary judgment where a party's papers in opposition to the motion raisetriable issues of fact" (Gold Connection Discount Jewelers v American Dist. Tel. Co.,212 AD2d 577, 578 [1995]; see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281[1978]; Gallello v MARJ Distribs.,Inc., 50 AD3d 734, 736 [2008]), the plaintiff failed to raise a triable issue of fact withrespect to the new theory (see Altinma vEast 72nd Garage Corp., 54 AD3d 978, 982 [2008]; O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514 [2007]).Speculation and [*2]surmise are insufficient to defeat a motionfor summary judgment (see Jaffe v NewYork City Tr. Auth., 52 AD3d 784 [2008]; Skouras v New York City Tr. Auth., 48 AD3d 547, 548 [2008]).Accordingly, that branch of the appellant's motion which was for summary judgment dismissingso much of the complaint as alleged design defect and failure to warn insofar as asserted againstit should have been granted. Covello, J.P., Angiolillo, Belen and Chambers, JJ., concur.[See 2007 NY Slip Op 33945(U).]