Mikoll, J. P. (dissenting). I respectfully dissent. In my view the order granting summary judgment dismissing the complaints should be reversed and the motion for summary judgment denied. Contrary to the view of the majority, I find the affidavit of plaintiffs’ expert witness sufficient to raise an issue of fact as to whether the repair work performed by defendant Broderick Motors, Inc. (hereinafter defendant) before the accident was improper and a cause of the accident. The expert opined that the brake failure which occurred three weeks after the brakes were subject to repair by defendant was the result of unsatisfactory and unsafe repair and that ”[i]n all probability, the unsatisfactory and unsafe repair was that the wheel brake mechanisms had been given or left with a significant amount of slack”. The expert provided the basis for this conclusion and for his conclusion that the brakes could not have been functioning normally or in accordance with minimum safety requirements. The conclusions of this expert witness are supported by the record and are not the result of mere conjecture and surmise.
Plaintiffs’ expert based the opinions and observations he made on photographs of the scene taken after the accident depicting skid marks from only the left rear set of wheels of the truck and other physical characteristics, measurements made at the scene, police and motor vehicle accident reports, examinations before trial and a memo from Howard Investigating Service. The latter was not included in the record. However, it does not appear that plaintiffs’ expert relied to any significant degree on the Howard investigative report for his conclusions. He made reference to it as to measurements of the distance and path the auto traveled after impact. The expert noted that the path the car traveled could be seen on a photograph. The investigative report has not been shown to be of sufficient consequence as to invalidate the expert’s opinion. Moreover, the issue can be adequately handled by the production of the author of the report for cross-examination at trial (see, Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726).
Ordered that the order is affirmed, without costs.