| Simmons v Neuman |
| 2008 NY Slip Op 02989 [50 AD3d 666] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Louise Simmons, Appellant, v David T. Neuman et al.,Respondents. |
—[*1] Marulli, Lindenbaum, Edelman & Tomaszewski, New York, N.Y. (Francesca M. Erichsen ofcounsel), for respondent David T. Neuman. Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for respondentCabrini Medical Center.
In an action to recover damages for medical malpractice, the plaintiff appeals from so muchof an order of the Supreme Court, Kings County (Jackson, J.), dated February 26, 2007, as deniedher motion for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for medical malpractice after sheallegedly suffered burns to her right thigh during surgery on her right shoulder. After issue wasjoined, but prior to the completion of disclosure, the plaintiff moved for summary judgment onthe issue of liability pursuant to the doctrine of res ipsa loquitur. The Supreme Court denied suchrelief. We affirm.
To rely on the doctrine of res ipsa loquitur, a plaintiff must demonstrate that (1) the injury isof a kind that does not occur in the absence of someone's negligence, (2) the injury is caused byan agency or instrumentality within the exclusive control of the defendants, and (3) the injury isnot due to any voluntary action on the part of the injured plaintiff (see Morejon v Rais Constr. Co., 7NY3d 203, 209 [2006]; States v Lourdes Hosp., 100 NY2d 208, 211-212 [2003];Kambat v St. Francis Hosp., 89 NY2d 489, 494-495 [1997]; DiGiacomo v Cabrini Med. Ctr., 21AD3d 1052, 1054 [2005]). Since the doctrine [*2]concernscircumstantial evidence which allows, but does not require, the fact finder to infer that thedefendant was negligent, "res ipsa loquitur evidence does not ordinarily or automatically entitlethe plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantialevidence is unrefuted" (Morejon v Rais Constr. Co., 7 NY3d at 209). Rather, "only in therarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. Thatwould happen only when the plaintiff's circumstantial proof is so convincing and the defendant'sresponse so weak that the inference of defendant's negligence is inescapable" (id.). Here,on the limited record made, this standard was not met, particularly as to the second element ofthe doctrine.
The plaintiff alleged that she was burned by an item identified variously throughout therecord as a "Bovie apparatus," a "Bovie device," and "Bovie pads." However, nothing in therecord describes or explains that device, or its use, if any, during the surgery at issue. Further,there are no relevant factual allegations concerning the surgery itself, such as the personnelinvolved in the surgery and their relationships, if any, or the responsibilities of each (seeFogal v Genesee Hosp., 41 AD2d 468 [1973]; Matlick v Long Is. Jewish Hosp., 25AD2d 538 [1966]; cf. Rosales-Rosario vBrookdale Univ. Hosp. & Med. Ctr., 1 AD3d 496 [2003]). Consequently, summaryjudgment on the issue of liability was properly denied. Rivera, J.P., Ritter, Carni and Leventhal,JJ., concur.