| Bunting v Haynes |
| 2013 NY Slip Op 01521 [104 AD3d 715] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Anthony Bunting, Appellant, v Thomas Haynes,Respondent. |
—[*1] Epstein, Gialleonardo, Frankini & Grammatico, Mineola, N.Y. (Lillian M. Kennedyof counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr.,J.), dated January 27, 2012, as denied his motion for summary judgment on the issue ofliability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, an employee of Keyspan/National Grid, allegedly was injured when thestaircase leading to the basement of the defendant's house collapsed as he was walkingdown the stairs to replace the water heater. At his deposition, the defendant testified thathis home was newly constructed when he purchased it in 1963, and that he did not makeany alterations or repairs to the staircase leading to the basement from the time hepurchased his home until the time the accident occurred on February 4, 2010.
The plaintiff moved for summary judgment on the issue of liability, relying on thedoctrine of res ipsa loquitur. In support of his motion, he submitted an affidavit from anexpert, a certified safety professional, who opined that the accident occurred because thestaircase was negligently constructed in that it was not properly fastened to the wall, andnegligently maintained because the defendant failed to remediate a mold condition. TheSupreme Court denied the motion.
The plaintiff's reliance on the doctrine of res ipsa loquitur was insufficient toestablish his prima facie entitlement to judgment as a matter of law. A plaintiff mustestablish the following in order for the doctrine to apply: "(1) the event must be of a kindwhich ordinarily does not occur in the absence of someone's negligence; (2) it must becaused by an agency or instrumentality within the exclusive control of the defendant; (3)it must not have been due to any voluntary action or contribution on the part of theplaintiff" (Corcoran v Banner Super Mkt., 19 NY2d 425, 430 [1967]; see Morejon v Rais Constr.Co., 7 NY3d 203, 206 [2006]; States v Lourdes Hosp., 100 NY2d 208,211-212 [2003]; Kambat v St. Francis Hosp., 89 NY2d 489, 494-495 [1997]; Dos Santos v Power Auth. of Stateof N.Y., 85 AD3d 718, 721 [2011]). Only in the rarest cases will a plaintiff beawarded summary judgment or judgment as a matter of law in the course of a trial byrelying upon the doctrine of res [*2]ipsa loquitur (seeMorejon v Rais Constr. Co., 7 NY3d at 209; Lau v Ky, 63 AD3d 801, 801 [2009]).
Here, the plaintiff failed to establish his prima facie entitlement to judgment as amatter of law. Since the staircase was constructed prior to the defendant's ownership ofthe home, and the defendant did not make any alterations or repair to it, the plaintiff didnot satisfy the second prong of the doctrine of res ipsa loquitur, which required proof ofthe defendant's exclusive control (see Palomo v 175th St. Realty Corp., 101 AD3d 579[2012]; Lofstad v S & RFisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]). Given that theplaintiff's expert opined that the accident occurred either due to negligent construction ornegligent maintenance, the plaintiff did not establish, by sufficiently convincingcircumstantial proof, "that the inference of defendant's negligence is inescapable"(Morejon v Rais Constr. Co., 7 NY3d at 209).
Since the plaintiff failed to meet his prima facie burden in the first instance, hismotion for summary judgment on the issue of liability was properly denied regardless ofthe sufficiency of the defendant's opposing papers (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.