| Brink v Anthony J. Costello & Son Dev., LLC |
| 2009 NY Slip Op 07024 [66 AD3d 1451] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Allen Brink, Respondent, v Anthony J. Costello & SonDevelopment, LLC, et al., Appellants. |
—[*1] Brenna, Brenna & Boyce, PLLC, Rochester (Sheldon W. Boyce of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.),entered June 4, 2008 in a personal injury action. The order denied defendants' motion forsummary judgment dismissing the amended complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the amended complaint to the extent that the amendedcomplaint, as amplified by the bill of particulars and supplemental bill of particulars, alleges thatdefendants created or had actual or constructive notice of the allegedly dangerous condition andas modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this negligence action alleging that he was injured whena door located in a building owned by defendants fell on him when he opened it. It is undisputedthat the door was mounted on hinges and that, when plaintiff pushed the bar on the door in orderto exit the building, the door came off the hinges mounted to the door frame and fell ontoplaintiff. We conclude that Supreme Court erred in denying that part of defendants' motion forsummary judgment dismissing the amended complaint to the extent that the amended complaint,as amplified by the bill of particulars and supplemental bill of particulars, alleges that defendantscreated the allegedly dangerous condition or had actual or constructive notice of it. Defendantsmet their burden of establishing their entitlement to judgment as a matter of law with respect tothose allegations, and plaintiff failed to raise an issue of fact (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). We therefore modify the order accordingly.
We conclude, however, that the court properly denied that part of defendants' motion to theextent that plaintiff relies on the doctrine of res ipsa loquitur in contending that the case shouldbe submitted to a trier of fact to determine the issue of defendants' negligence based on theapplication of that doctrine. "In a proper case, under the doctrine of res ipsa loquitur, the lawallows a [trier of fact] to consider the circumstantial evidence and infer that the defendant wasnegligent in some unspecified way" (Morejon v Rais Constr. Co., 7 NY3d 203, 205-206 [2006]). Whenviewing the circumstantial evidence, we conclude on the record before us that there is an issue of[*2]fact with respect to defendants' negligence, renderingsummary judgment inappropriate (see id. at 211-212). It is well established that thedoctrine of res ipsa loquitur may apply to the issue of negligence only in the event that theplaintiff presents evidence of three conditions that would afford a rational basis that " 'it is morelikely than not' " that an injury was caused by the defendant's negligence: that the event is "of akind that ordinarily does not occur in the absence of someone's negligence"; that the event wascaused by an instrumentality within the exclusive control of the defendant; and that the eventwas not "due to any voluntary action or contribution on the part of the plaintiff" (Kambat vSt. Francis Hosp., 89 NY2d 489, 494 [1997]).
We agree with the First Department that a door mounted on hinges would not generally fallwhen opened, in the absence of someone's negligence (see Lukasinski v First New Amsterdam Realty, 3 AD3d 302, 303[2004]; Pavon v Rudin, 254 AD2d 143 [1998]). Furthermore, the record establishes thatthere is a question of fact whether the instrumentality, i.e., the door, was within the exclusivecontrol of defendants (see generally Pavon, 254 AD2d at 146). Plaintiff merely openedthe door, and thus he is not liable for the accident (see id. at 145). Although defendantspresented evidence that a witness believed that a gust of wind caught the door, causing it toseparate from the frame, plaintiff "need not conclusively eliminate the possibility of all othercauses of the [accident]" in order to rely on the doctrine of res ipsa loquitur in presenting theissue of negligence to the trier of fact (Kambat, 89 NY2d at 494).Present—Scudder, P.J., Smith, Carni, Pine and Gorski, JJ.