In Correa v. Matsias, 2017 WL 4159254 (N.Y.A.D. 2 Dept. Sept. 20, 2017), a ceiling-collapse personal injury case, the court held that plaintiff could not employ the doctrine of “res ipsa loquitur” at trial.
That doctrine, explained the court,
is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendant’s exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff[.]
Applying the law, the court explained:
[T]he defendant established, prima facie, that the doctrine of res ipsa loquitur is inapplicable by submitting evidence demonstrating that the plaintiff had been residing at her apartment for more than one year at the time of the incident, and thus, that the defendant did not have the requisite exclusive control over the allegedly defective condition.
Since plaintiff failed to raise an issue of fact as to the applicability of the doctrine, the court held that it was unavailable to plaintiff at trial.
However, the court agreed that “defendant failed to establish, prima facie, that she maintained the premises in a reasonably safe condition.”
The law provides:
In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that she or he neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.
Applying the law, the court held that plaintiff presented sufficient evidence of notice to overcome summary judgment.
Here, in support of her motion, the defendant submitted, inter alia, the deposition testimony of the plaintiff, who testified that she had previously complained to the building superintendent, Jose Martinez, that the ceiling was damaged and water-stained, and that she feared it might fall on her. The plaintiff also testified that the defendant had advised her to inform Martinez of any complaints about her apartment. Under the circumstances, the defendant failed to establish, prima facie, that she had no notice of the alleged hazardous condition (see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837). Contrary to the defendant’s contention, Martinez’s deposition testimony that he had not received any prior complaints about the subject area of the ceiling merely raised an issue of credibility which cannot be determined on a motion for summary judgment (see Best v. 1482 Montgomery Estates, LLC, 114 AD3d 555, 556; Giraldo v. Twins Ambulette Serv., Inc., 96 AD3d 903, 904).The court did not rule on defendant’s argument that Martinez was merely a tenant in the building who did not have the authority to receive and address complaints from tenants, since it was “improperly raised for the first time on appeal.”
Citing Winegrad v. New York Univ. Med. Ctr., the court concluded that “[s]ince the defendant failed to demonstrate her prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied her motion for summary judgment without regard to the sufficiency of the plaintiff’s opposition papers.”
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|1.||↩||The court did not rule on defendant’s argument that Martinez was merely a tenant in the building who did not have the authority to receive and address complaints from tenants, since it was “improperly raised for the first time on appeal.”|