In Timmins v. Tishman Construction Corp (9 AD3d 62 [1st Dept 2004]) the plaintiff sued for personal injuries sustained when he was pushing open a rolling gate that was missing a wheel. The issue in the case was whether the Tishman defendants owed a duty to plaintiff, a non-contracting third party, to maintain the gate (id. at 65). The Court pointed out that there is no basis for imposing such liability unless the defendants "negligently created or exacerbated the dangerous condition that caused plaintiff's injury" (id. at 68-69). In rejecting the plaintiff's theory, the Court observed: Plaintiff's claim that the Tishman defendants negligently created or exacerbated a dangerous condition is based entirely upon the affidavit of his expert, Edward Brunjes, whose opinions, lacking an adequate foundation or evidentiary basis, are legally insufficient to create an issue of fact . . . . Significantly, the expert did not claim any specific expertise or experience with regard to the engineering, procurement, installation, maintenance or repair of gates of any kind, much less a cantilever gate such as is involved herein. Significantly, plaintiff's expert did not offer an opinion that the modification of the gate by the addition of a tail and a wheel did not conform to accepted industry standards, or that the gate, as so modified, was not in good working order. (Id. at 69)