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BERNADETTE DeFALCO, ET AL., plaintiffs-respondents, v. ROGER J. PARKER, ET AL., defendants, THRIFTY PAPER CO., INC., defendant-respondent, E.E. CRUZ COMPANY, INC., appellant (AND THIRD AND FOURTH PARTY ACTIONS).

ORDERED that the order is affirmed insofar as appealed from, with costs payable to the plaintiffs-respondents.

The Supreme Court erred in relying upon the legal opinions contained in the affidavit of the plaintiffs' expert as to the meaning of the subject contract and the legal obligations of the parties under the contract (see, Marx Co. v. Diners Club, Inc., 550 F.2d 505, 508-510, cert denied 434 U.S. 861; Colon v. Rent-A-Center, 276 A.D.2d 58, 61). Nevertheless, the Supreme Court correctly adhered to its original determination denying the appellant's motion for summary judgment, since a triable issue of fact exists even without the affidavit of the plaintiffs' expert (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Reiner v. Wenig, 269 A.D.2d 379; cf., W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162-163). For example, the appellant did not establish as a matter of law that it owed no duty to the injured plaintiff. If the contract is interpreted as the plaintiffs urge, or if the appellant negligently caused the leak in question, the record does not conclusively foreclose the plaintiffs' recovery against the appellant.

The appellant's remaining contentions are without merit.

S. MILLER, J.P., LUCIANO, SCHMIDT and CRANE, JJ., concur.

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DeFALCO v. PARKER
(Mar 5, 2002)