| Jappa v Starrett City, Inc. |
| 2009 NY Slip Op 08787 [67 AD3d 968] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Yvonne Jappa, Respondent, v Starrett City, Inc.,Appellant. |
—[*1] Kaston Aberle & Levine, Mineola, N.Y. (Richard M. Aberle of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Bayne, J.), dated February 19, 2008, which denied its motionfor summary judgment dismissing the complaint and granted the plaintiff's cross motion pursuantto CPLR 3025 for leave to amend her bill of particulars to assert a theory of negligence based onthe doctrine of res ipsa loquitur.
Ordered that the order is affirmed, with costs.
In the lobby of a building owned by the defendant in which the plaintiff resided, the plaintiffwas injured when tile fell from the drop ceiling and struck her head, neck, shoulder, and arm.After issue was joined, the defendant moved for summary judgment dismissing the complaint onthe ground that it did not have actual or constructive notice of the alleged ceiling defect.Thereafter, the plaintiff cross-moved for leave to amend her bill of particulars to assert a theoryof negligence based on the doctrine of res ipsa loquitur.
The defendant failed to demonstrate that it would be prejudiced as a result of permitting theplaintiff to amend her bill of particulars to assert a theory of negligence under the doctrine of resipsa loquitur (see Lipari v BabylonRiding Ctr., Inc., 18 AD3d 824, 826 [2005]).
The defendant established, prima facie, that it had no actual or constructive notice of adefective condition in the ceiling (seeFyall v Centennial El. Indus., Inc., 43 AD3d 1103 [2007]). In opposition, the plaintifffailed to raise a triable issue of fact as to the defendant's actual or constructive notice (seeCPLR 3212 [b]). However, proof that tiles falling from a ceiling is an occurrence that wouldnot ordinarily occur in the absence of negligence, the ceiling of the lobby was in the exclusivecontrol of the defendant, and no act or negligence on the plaintiff's part contributed to theaccident, would be a basis for liability under the doctrine of res ipsa loquitur (see Dittiger vIsal Realty Corp., 290 NY 492 [1943]; Fyall v Centennial El. Indus., Inc., 43 AD3dat 1104). Here, the defendant did not negate the applicability of that doctrine. Accordingly, theSupreme Court properly denied the defendant's motion and granted the plaintiff's cross [*2]motion. Fisher, J.P., Angiolillo, Eng and Lott, JJ., concur.[Prior Case History: 2008 NY Slip Op 30831(U).]