| Bodnarchuk v State of New York |
| 2008 NY Slip Op 02093 [49 AD3d 581] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Lyubomir Bodnarchuk, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany, N.Y. (Peter H. Schiff and Marlene O.Tuczinski of counsel), for respondent.
In a claim to recover damages for personal injuries, the claimant appeals from a judgment ofthe Court of Claims (Mignano, J.), dated February 6, 2007, which, after a nonjury trial on theissue of liability, is in favor of the defendant and against him dismissing the claim.
Ordered that the judgment is affirmed, with costs.
The claimant, an asbestos worker employed by a subcontractor to perform asbestosabatement at the Helen Hayes Hospital, allegedly was injured after he fell 8 to 10 feet through ametal grate into a hole. The grate was located beneath a window which the workers, including theclaimant, used to pass equipment and materials into and out of the locker room where theabatement was taking place. There was evidence at trial that the only way that workers andmaterials were supposed to enter and exit the locker room was through a decontaminationchamber.
The Court of Claims dismissed the claim after trial, and we affirm. Contrary to the claimant'scontention, he was not entitled to judgment in his favor based upon the doctrine of res ipsaloquitur. Res ipsa loquitur permits an inference of negligence to be drawn when the nature of theaccident is such that it "would ordinarily not happen without negligence" (Dermatossian vNew York City Tr. Auth., 67 NY2d 219, 226 [1986]). "Res ipsa loquitur does not create apresumption in favor of the plaintiff but merely permits the inference of negligence to be drawnfrom the circumstances of the occurrence" (id.). When the doctrine is applicable, itcreates a prima facie case of negligence [*2]sufficient forsubmission to the fact finder, who may, but is not required to, draw a permissive inference ofnegligence (see Kambat v St. Francis Hosp., 89 NY2d 489 [1997]).
It is the general rule in New York that res ipsa loquitur applies only when the plaintiff canestablish the following three elements: "(1) the event must be of a kind which ordinarily does notoccur in the absence of someone's negligence; (2) it must be caused by an agency orinstrumentality within the exclusive control of the defendant; (3) it must not have been due toany voluntary action or contribution on the part of the plaintiff" (Dermatossian v New YorkCity Tr. Auth., 67 NY2d at 226 [internal quotation marks omitted]). Here, the evidence didnot support a finding that the defendant had exclusive control over the area where the metal gratewas located, as the claimant and other asbestos workers, as well as the public, had access to thisarea (see Imhotep v State of New York, 298 AD2d 558 [2002]; Patrick v Bally's TotalFitness, 292 AD2d 433 [2002]). In addition, the evidence failed to establish that the accidentwas due to the defendant's negligence. Indeed, it is equally, if not more, likely that the accidentwas due to the actions of the workers, including the claimant, in using the window for access tothe locker room, instead of exiting and entering through the decontamination unit. Accordingly,the court properly declined to apply the doctrine of res ipsa loquitur.
The claimant's remaining contentions are without merit. Lifson, J.P., Ritter, Florio and Carni,JJ., concur.