Buckman & Whitbeck Professional Engineering & Land Surveying v. Haseley Consultants

Court properly denied plaintiff’s motion for summary judgment dismissing the counterclaim and affirmative defense. Plaintiff contends that defendants’ assertion of negligence on the part of plaintiff is necessarily premised upon the doctrine of res ipsa loquitur. We disagree. In opposition to the motion, defendants submitted affidavits containing specific allegations of negligent conduct on the part of plaintiff. Thus, although the parties are in agreement concerning the underlying facts, defendants raised a question of fact for jury determination (see, Noody v Facer, 105 AD2d 1112 ).

We have considered the remaining contentions raised on appeal and conclude that they are without merit. (Appeal from Order of Supreme Court, Cayuga County, Corning, J.—Summary Judgment.) Present—Green, J. P., Lawton, Doerr and Fallon, JJ.