ALTAMIRANO v. DOOR AUTOMATION CORP (2008)

Order, Supreme Court, New York County (Debra A. James, J.), entered July 20, 2007, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law because there are factual issues as to whether defendant's repair of the door created an unreasonable risk of harm to others.   Although plaintiff is a noncontracting third party, defendant “enlarge[d] ․ the zone of duty” when it “launched a force or instrument of harm” by undertaking the repair of the door, thus owing plaintiff a duty of care (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 139, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002], quoting Chief Judge Cardozo in Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 [1928];  see also Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994] ).

Contrary to defendant's argument, plaintiff's expert's affidavit was not conclusory or speculative, but was grounded in facts personally known him as well as the documents in evidence (Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348 [1959];  Wagman v. Bradshaw, 292 A.D.2d 84, 86-87, 739 N.Y.S.2d 421 [2002] ).   Mr. Seluga's review of a maintenance manual for an electric power door four-fold operator, not the maintenance manual for the subject door, goes to the weight, not the admissibility, of the evidence.   Moreover, defendant presented no evidence to rebut the facts or issues raised in the affidavit that its repair of the door created a condition so dangerous as to bring plaintiff's claim within the exception to the rule normally precluding contractual third-party tort liability (cf. Church v. Callanan Indus., 99 N.Y.2d 104, 111-112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ).

The issue whether Lincoln Center's employees' purported negligence was a proximate cause of plaintiff's injury is for a jury to determine (Vaswani v. Martin, 278 A.D.2d 96, 717 N.Y.S.2d 533 [2000] ).