| Lau v Ky |
| 2009 NY Slip Op 04870 [63 AD3d 801] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Annie Lau, Appellant, v Alex Jenny Ky et al.,Respondents. |
—[*1] Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Steinhardt, J.), dated December 14, 2007,which denied her motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff moved for summary judgment on the issue of liability based upon a theory ofres ipsa loquitur. "To rely on the doctrine of res ipsa loquitur, a plaintiff must demonstrate that(1) the injury is of a kind that does not [ordinarily] occur in the absence of someone's negligence,(2) the injury is caused by an agency or instrumentality within the exclusive control of thedefendants, and (3) the injury is not due to any voluntary action on the part of the injuredplaintiff" (Simmons v Neuman, 50AD3d 666, 667 [2008]; seeMorejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). "[O]nly in the rarest of res ipsaloquitur cases may a plaintiff win summary judgment or a directed verdict. That would happenonly when the plaintiff's circumstantial proof is so convincing and the defendant's response soweak that the inference of defendant's negligence is inescapable" (Morejon v Rais Constr.Co., 7 NY3d at 209). The Supreme Court properly denied the plaintiff's motion because thisburden was not met (id. at 212; see Smalls v Mercy Med. Ctr., 50 AD3d 670 [2008]; Simmonsv Neuman, 50 AD3d at 667). Mastro, J.P., Skelos, Dickerson and Lott, JJ., concur.