| Lagman v Overhead Door Corp. |
| 2015 NY Slip Op 04099 [128 AD3d 778] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Chris Lagman, Appellant, v Overhead DoorCorporation, Defendant, and Liberty Overhead Doors, Inc.,Respondent. |
Law Offices of Michael T. O'Leary, PLLC, Hawthorne, N.Y., for appellant.
Jeffrey Marder, New York, N.Y. (Michael Swimmer of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Westchester County (O.Bellantoni, J.), dated May 24, 2013, as granted that branch of the motion of the defendantLiberty Overhead Doors, Inc., which was for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when an overhead garage door fell and struck himon the head at his place of employment. He commenced this action against LibertyOverhead Doors, Inc. (hereinafter Liberty), among others, to recover damages forpersonal injuries. After the completion of discovery, Liberty moved, inter alia, forsummary judgment dismissing the complaint insofar as asserted against it. The SupremeCourt, among other things, granted that branch of Liberty's motion, and the plaintiffappeals from that portion of the order.
The Supreme Court properly granted that branch of Liberty's motion which was forsummary judgment dismissing the complaint insofar as asserted against it. Libertyestablished, prima facie, that it owed no duty of care to the plaintiff by submittingevidence demonstrating that it was an independent repairer/contractor that had neverentered into a contract with the plaintiff's employer to provide routine or systematicinspection or maintenance of the subject door, and that it only performed work on thedoor on an as-needed basis, as determined by the plaintiff's employer. Under suchcircumstances, Liberty owed no duty of care to the plaintiff (see Merchants Mut. Ins. Co. vQuality Signs of Middletown, 110 AD3d 1042, 1043 [2013]; Mauskopf v 1528 OwnersCorp., 102 AD3d 930, 932 [2013]). Liberty also established, prima facie, that itwas not negligent in the work that it performed on the subject door six days prior to theplaintiff's accident, and that the work that it performed was unrelated to the condition ordefect that allegedly caused the subject door to fall. Absent proof of a duty or negligencein connection with its repairs, Liberty cannot be held liable (see Allen v Thompson OverheadDoor Co., 3 AD3d 462, 464-465 [2004]).
[*2] In opposition, the plaintiff failed to raise a triable issueof fact. The plaintiff's expert's affidavit was speculative, conclusory, and assumed factsnot supported by the evidence (see Lopez v Retail Prop. Trust, 118 AD3d 676 [2014]; Fenty v Seven Meadows Farms,Inc., 108 AD3d 588 [2013]; Espinal v Jamaica Hosp. Med. Ctr., 71 AD3d 723[2010]).
Accordingly, the Supreme Court properly granted that branch of Liberty's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it.Dillon, J.P., Leventhal, Austin and LaSalle, JJ., concur.