| Montalvo v Mumpus Restorations, Inc. |
| 2010 NY Slip Op 06298 [76 AD3d 516] |
| August 3, 2010 |
| Appellate Division, Second Department |
| Albert Guilbe Montalvo, Respondent, v MumpusRestorations, Inc., Appellant. |
—[*1] Callan & Byrnes, New York, N.Y. (Michael Healey of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Queens County (Hart, J.), enteredDecember 12, 2008, as denied those branches of its motion which were for summary judgmentdismissing the causes of action alleging a violation of Labor Law § 200 and common-lawnegligence.
Ordered that the order is affirmed insofar as appealed from, with costs.
On May 10, 2003, the plaintiff, a porter at a building in Corona, left the building through aside door and allegedly was struck and injured by a bucket of roofing adhesive that fell from theroof. He commenced this action against the defendant, Mumpus Restorations, Inc. (hereinafterMumpus), which, several weeks earlier, had repaired a section of the roof. The plaintiff allegedthat Mumpus workers had left the bucket on the roof when they completed their work. Mumpusmoved for summary judgment dismissing the complaint, and the Supreme Court denied themotion with respect to those causes of action alleging common-law negligence and violation ofLabor Law § 200. We affirm the order insofar as appealed from.
The defendant established its prima facie entitlement to judgment as a matter of law inconnection with the Labor Law § 200 and common-law negligence causes of action bytendering proof in admissible form that its employees did not leave the bucket on the roof and,therefore, did not cause the plaintiff's injuries (see Ragone v Spring Scaffolding, Inc., 46 AD3d 652, 654 [2007];cf. Wein v Amato Props., LLC, 30AD3d 506, 507 [2006]). In opposition, however, the plaintiff raised triable issues of fact asto the defendant's liability. First, the plaintiff presented evidence that the defendant's employeesleft the bucket on the roof, and that the falling bucket caused his injuries. Moreover, as theSupreme Court properly held, the circumstances reveal a triable issue of fact as to whether thedefendant may be held liable under the doctrine of res ipsa loquitur. To invoke that doctrine, aplaintiff is required to show: (1) that the event was "of a kind which ordinarily does not occur inthe absence of someone's negligence"; (2) that it was "caused by an agency or instrumentalitywithin the exclusive control of the defendant"; and (3) that it was not "due to any voluntaryaction or [*2]contribution on the part of the plaintiff"(Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226-227 [1986] [citation andinternal quotation marks omitted]; seeMorejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]; Jappa v Starrett City, Inc., 67 AD3d968, 969 [2009]; Gaspard v BarklyCoverage Corp., 65 AD3d 1188, 1189 [2009]). Of these three elements, the defendantcontests only the second, but the evidence established that access to the roof was limited, andthere is an issue of fact as to whether access to the roof was sufficiently exclusive to thedefendant's employees between the time the bucket allegedly was left on the roof and the time ofthe incident (see Fields v King KullenGrocery Co., 28 AD3d 513, 514 [2006]; O'Connor v Circuit City Stores, Inc., 14 AD3d 676, 677-678[2005]; cf. Durso v Wal-Mart Stores, 270 AD2d 877 [2000]). Accordingly, the SupremeCourt properly denied those branches of the defendant's motion which were for summaryjudgment dismissing the causes of action alleging a violation of Labor Law § 200 andcommon-law negligence.
We note that the defendant does not argue on this appeal that he did not owe a duty to theplaintiff under Labor Law § 200. Consequently, we do not address that issue (see Misicki v Caradonna, 12 NY3d511, 518-519 [2009]). Fisher, J.P., Balkin, Roman and Sgroi, JJ., concur. [Prior CaseHistory: 21 Misc 3d 1141(A), 2008 NY Slip Op 52472(U).]