YAEGER v. County Line Stone Co., Inc., Defendant-Respondent.

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Supreme Court, Appellate Division, Fourth Department, New York.

Douglas F. YAEGER and Carol S. Yaeger, Plaintiffs-Appellants, v. UCC CONSTRUCTORS, INC., et al., Defendants, County Line Stone Co., Inc., Defendant-Respondent.

Decided: March 21, 2001

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and KEHOE, JJ. Alan P. McCracken, Akron, for plaintiffs-appellants. Deborah A. Chimes, Buffalo, for defendant-respondent.

 Supreme Court properly granted the motion of County Line Stone Co., Inc. (defendant) for summary judgment dismissing the complaint and cross claims against it.   Defendant established that it was not negligent in loading the semi-trailer driven by Douglas F. Yaeger (plaintiff) with large rocks for transportation to a construction site.   We reject plaintiffs' contention that negligence may be reasonably inferred from the fact that the semi-trailer tipped over while the rocks were being dumped at the site.   Because of space limitations plaintiff had parked the vehicle on allegedly uneven ground in a jack-knifed position.   Defendant met its burden of establishing that the semi-trailer was loaded properly and that the weight of the rocks was evenly distributed when the semi-trailer left defendant's premises.   Both plaintiff and the employee of defendant who loaded the semi-trailer had inspected it before plaintiff drove it to the construction site, and plaintiff did not notice any shifting either during his 70- to 80-mile drive to the construction site or when he inspected the load before the dumping started.   A motion for summary judgment will not be defeated by speculation that a defendant was negligent (see, Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674;  see also, Miranda v. Devlin, 260 A.D.2d 451, 452, 688 N.Y.S.2d 578;  Brempong v. Henris, 235 A.D.2d 238, 652 N.Y.S.2d 516), and here plaintiffs failed to establish any “facts and conditions from which the negligence of defendant may be reasonably inferred” (Bernstein v. City of New York, 69 N.Y.2d 1020, 1022, 517 N.Y.S.2d 908, 511 N.E.2d 52).

Plaintiffs' contention that summary judgment was improper because the facts surrounding the accident are solely within the knowledge of defendant is unavailing.   Plaintiffs have deposed defendant's employee who loaded the semi-trailer (see, James v. LeFeber, 275 A.D.2d 973, 715 N.Y.S.2d 193), and plaintiff was present and witnessed part of the loading of the trailer.   Further, plaintiffs “failed to indicate the essential facts that [they believe] are in the exclusive knowledge and possession” of defendant (Lavin & Kleiman v. Heinike Assocs., 221 A.D.2d 919, 633 N.Y.S.2d 901;  see, Maron v. Hillside Children's Ctr., 247 A.D.2d 871, 667 N.Y.S.2d 962).

 Plaintiffs did not raise the theory that defendant was negligent in permitting the use of a semi-trailer instead of a 10-wheel truck in their complaint or bill of particulars, and thus may not assert that theory in an attempt to defeat defendant's motion for summary judgment.  “ ‘[A] new theory, presented for the first time in opposition to a motion for summary judgment, cannot bar relief which is otherwise appropriate’ ” (Forester v. Golub Corp., 267 A.D.2d 526, 527, 699 N.Y.S.2d 185, quoting Scanlon v. Stuyvesant Plaza, 195 A.D.2d 854, 855, 600 N.Y.S.2d 810;  see, Otonoga v. City of New York, 234 A.D.2d 592, 593, 652 N.Y.S.2d 67).   In any event, that theory lacks merit.   There was no proof that defendant was contractually obligated to load the rocks in 10 wheel trucks rather than semi-trailers and no proof that plaintiff relied to his detriment on any contractual obligation of defendant (see, Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 587, 611 N.Y.S.2d 817, 634 N.E.2d 189).

Order unanimously affirmed without costs.

MEMORANDUM: