PESANTES v. (and third-party actions).

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

Joffre PESANTES, respondent, v. KOMATSU FORKLIFT USA, INC., appellant, et al., defendant (and third-party actions).

Decided: January 27, 2009

JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ. Strongin Rothman & Abrams, LLP, New York, N.Y. (Howard F. Strongin and Annette G. Hasapidis of counsel), for appellant. Dell & Little, LLP, Uniondale, N.Y. (John S. McDonnell of counsel), for respondent.

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.), dated November 28, 2007, as denied that branch of its motion which was for summary judgment dismissing so much of the complaint as alleged design defect and failure to warn insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the appellant's motion which was for summary judgment dismissing so much of the complaint 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 the defendant Komatsu Forklift USA, Inc. (hereinafter the appellant), the plaintiff raised a new theory of liability.   Although “[a] court may properly look beyond the allegations in the complaint and deny summary judgment where a party's papers in opposition to the motion raise triable issues of fact” (Gold Connection Discount Jewelers v. American Dist. Tel. Co., 212 A.D.2d 577, 578, 622 N.Y.S.2d 740;  see Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 281, 413 N.Y.S.2d 309, 385 N.E.2d 1238;  Gallello v. MARJ Distribs., Inc., 50 A.D.3d 734, 736, 855 N.Y.S.2d 602), the plaintiff failed to raise a triable issue of fact with respect to the new theory (see Altinma v. East 72nd Garage Corp., 54 A.D.3d 978, 982, 865 N.Y.S.2d 109;  O'Boy v. Motor Coach Indus., Inc., 39 A.D.3d 512, 514, 834 N.Y.S.2d 231).   Speculation and surmise are insufficient to defeat a motion for summary judgment (see Jaffe v. New York City Tr. Auth., 52 A.D.3d 784, 861 N.Y.S.2d 388;  Skouras v. New York City Tr. Auth., 48 A.D.3d 547, 548, 852 N.Y.S.2d 206).   Accordingly, that branch of the appellant's motion which was for summary judgment dismissing so much of the complaint as alleged design defect and failure to warn insofar as asserted against it should have been granted.

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