| Pampalone v FBE Van Dam, LLC |
| 2014 NY Slip Op 08966 [123 AD3d 988] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Gregory Pampalone, Respondent, v FBE VanDam, LLC, et al., Appellants. |
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y.(Marcia K. Raicus of counsel), for appellants.
Myron G. Lasser, P.C. (Arnold E. DiJoseph, III, New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from (1)an order of the Supreme Court, Richmond County (Fusco, J.), dated December 4, 2013,which granted the plaintiff's motion for summary judgment on the issue of liability anddenied their cross motion for summary judgment dismissing the complaint, and (2) aninterlocutory judgment of the same court entered February 10, 2014, which, upon theorder, is in favor of the plaintiff and against it on the issue of liability.
Ordered that the appeal from the order is dismissed, as it was superseded by theinterlocutory judgment; and it is further,
Ordered that the interlocutory judgment is reversed, on the law, the plaintiff's motionfor summary judgment on the issue of liability is denied, and the order is modifiedaccordingly; and it is further,
Ordered that one bill of costs is awarded to the defendants.
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;[and] (3) it must not have been due to any voluntary action or contribution on the part ofthe plaintiff" (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]; Bunting v Haynes, 104 AD3d715 [2013]; Dos Santos vPower Auth. of State of N.Y., 85 AD3d 718, 721 [2011]). Only in the rarestcases will a plaintiff relying upon the doctrine of res ipsa loquitur be awarded summaryjudgment (see Morejon v Rais Constr. Co., 7 NY3d at 209; Bunting vHaynes, 104 AD3d at 715; Lau v Ky, 63 AD3d 801, 801 [2009]).
Here, the plaintiff failed to establish his prima facie entitlement to judgment as a[*2]matter of law on the issue of liability. Thesubmissions relied upon by the plaintiff in support of his motion, which included, interalia, the excerpts of not only his deposition transcript, but also the excerpts of thedeposition transcript of one of the employees of the defendant RD Management LLC,failed to satisfy the second prong of the doctrine of res ipsa loquitur, which requiredproof of the defendants' exclusive control of the staircase at issue (see Palomo v 175th St. RealtyCorp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742[2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137AD2d 785 [1988]). Since the plaintiff failed to meet his prima facie burden, his motionfor summary judgment on the issue of liability should have been denied regardless of thesufficiency of the defendants' opposing papers (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
The Supreme Court properly denied the defendants' cross motion for summaryjudgment dismissing the complaint. In a premises liability case, a defendant propertyowner, or a party in possession or control of real property, who moves for summaryjudgment has the initial burden of making a prima facie showing that it neither createdthe alleged defective condition nor had actual or constructive notice of its existence (see Dhu v New York City Hous.Auth., 119 AD3d 728, 728 [2014]; Kruger v Donzelli Realty Corp., 111 AD3d 897, 898[2013]; Bravo v 564 SenecaAve. Corp., 83 AD3d 633, 634 [2011]). Here, the defendants failed to make aprima facie showing that they did not create the alleged defective condition. Since thedefendants failed to meet their prima facie burden in the first instance, their cross motionfor summary judgment dismissing the complaint was properly denied regardless of thesufficiency of the plaintiff's opposing papers (see Alvarez v Prospect Hosp., 68NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
Accordingly, the Supreme Court properly denied the defendants' cross motion forsummary judgment dismissing the complaint, but it should also have denied theplaintiff's motion for summary judgment on the issue of liability. Balkin, J.P., Leventhal,Hall and Hinds-Radix, JJ., concur.