| Hoeberlein v Bed Bath & Beyond, Inc. |
| 2015 NY Slip Op 00497 [124 AD3d 722] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Linda J. Hoeberlein et al., Respondents, v BedBath & Beyond, Inc., Appellants. |
Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick, Paul S. Devine,and Danielle R. Schilling of counsel), for appellants.
Giuffré Law Offices, P.C., Garden City, N.Y. (John H. Giuffré ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Nassau County (Jaeger, J.), dated April 7, 2014,which granted the plaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motionfor summary judgment on the issue of liability is denied.
The complaint alleged that the plaintiff Linda J. Hoeberlein (hereinafter the injuredplaintiff) was injured at a retail store owned and operated by the defendants. At herdeposition, the injured plaintiff testified that she was struck by a box that fell from anoverhead shelf. The injured plaintiff stated that the box fell from the overhead shelfshortly after she slid a different box back into place on a shelf directly beneath theoverhead shelf.
The plaintiffs moved for summary judgment on the issue of liability based upon atheory of res ipsa loquitur. In support of their motion, the plaintiffs submitted, amongother things, the deposition testimony of the injured plaintiff. The Supreme Court grantedthe motion.
"The doctrine of res ipsa loquitur permits an inference of negligence to be drawnsolely from the happening of an accident" (Nikollbibaj v City of New York, 106 AD3d 789, 789[2013]; see Morejon v RaisConstr. Co., 7 NY3d 203, 209 [2006]). Since "the circumstantial evidenceallows but does not require the jury to infer that the defendant was negligent. . . res ipsa loquitur evidence does not ordinarily or automatically entitle theplaintiff to summary judgment . . . even if the plaintiff's circumstantialevidence is unrefuted" (Morejon v Rais Constr. Co., 7 NY3d at 209). "[O]nly inthe rarest of res ipsa loquitur cases may a plaintiff win summary judgment" (id.;see Lau v Ky, 63 AD3d801, 801 [2009]). "That would happen only when the plaintiff's circumstantial proofis so convincing and the defendant's response so weak that the inference of defendant'snegligence is inescapable" (Morejon v Rais Constr. Co., 7 NY3d at 209; see Bunting v Haynes, 104AD3d 715, 716 [2013]; Lau v Ky, 63 AD3d at 801; see also Keyser v KB Toys,Inc., 82 AD3d 713, 714 [2011]; Crockett v Mid-City Mgt. Corp., 27 AD3d 611, 612[2006]; Weeden v Armor El. Co., 97 AD2d 197, 204 [1983]).
[*2] Here, the plaintiffs' submissions on the issue of resipsa loquitur were insufficient to establish, prima facie, their entitlement to judgment as amatter of law on the issue of liability. The plaintiffs did not establish, by sufficientlyconvincing circumstantial proof, "that the inference of defendant's negligence isinescapable" (Morejon v Rais Constr. Co., 7 NY3d at 209; see Bunting vHaynes, 104 AD3d at 716; Lau v Ky, 63 AD3d at 801; see also Keyser vKB Toys, Inc., 82 AD3d at 714; Crockett v Mid-City Mgt. Corp., 27 AD3dat 612). Accordingly, the Supreme Court should have denied the plaintiffs' motion,without regard to the sufficiency of the papers submitted in opposition (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P., Miller,Hinds-Radix and LaSalle, JJ., concur.