Walker v. First Transit, Inc.

35 A.D.3d 452, 825 N.Y.S.2d 526

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 2006
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated November 16, 2005, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The injured plaintiff was employed as a delivery driver by Airborne Express. As he was exiting a van through the rear door to make a delivery, a gust of wind caused one of the opened rear doors to close in on him. The door struck the injured plaintiff in the head, causing personal injuries. The subject van was designed and manufactured with a door stabilizer which locked the rear doors at about a 90-degree angle and prevented the door from swinging.

Airborne Express had a service agreement with the defendants, which provided fleet maintenance and repair services. When delivery drivers and their supervisors identified any problems with the delivery vans, the defendants repaired them. At times, the defendants were retained to make “non-contract” repairs, for which they were paid additional fees. At Airborne Express’s direction, the defendants performed the “non-contract” repair of removing the door stabilizer from the van so that the rear doors could be opened at a 180-degree angle.

The defendants established their entitlement to judgment as a matter of law by demonstrating that they did not owe a duty of care to the injured plaintiff by virtue of their limited service contract with Airborne Express (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Brodbeck v Albany Intl. Corp., 297 AD2d 693 [2002]; Macias Vergara v Tides Constr. Corp., 280 AD2d 665 [2001]; Pitkin v McMahon, 243 AD2d 958 [1997]). Additionally, the evidence failed to show that the defendants were negligent in removing the door stabilizer from the subject van at the direction of Airborne Express (see generally Gee v City of New York, 304 AD2d 615 [2003]). The expert affidavit submitted by the plaintiffs in opposition to the motion was speculative and conclusory and insufficient to raise a triable issue of fact (see Rovegno v Church of Assumption, 268 AD2d 576 [2000]). Adams, J.P., Fisher and Lifson, JJ., concur.