| Rakauskas v Arden Shell Corp. |
| 2015 NY Slip Op 09665 [134 AD3d 1087] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| Daniel Rakauskas et al., Appellants, v ArdenShell Corp. et al., Respondents. |
Gerard DeCapua, Rockville Centre, NY (Bernard G. Chambers of counsel), forappellants.
James R. Pieret (Milber Makris Plousadis & Seiden, LLP, White Plains, NY[David C. Zegarelli], of counsel), for respondent Arden Shell Corp.
Faust Goetz Schenker & Blee, New York, NY (Peter Kreymer of counsel), forrespondent Fire Guard of Long Island, Inc.
In an action to recover damages for personal injuries, the plaintiffs appeal from ajudgment of the Supreme Court, Richmond County (Marin, J.), entered July 18, 2013,which, upon a jury verdict on the issue of liability finding that the defendants were notnegligent, is in favor of the defendants and against them dismissing the complaint.
Ordered that the judgment is affirmed, with one bill of costs.
On July 3, 2006, the plaintiffs were in the process of purchasing fuel at a Shell gasstation owned by the defendant Arden Shell Corp. (hereinafter Arden) when a firesuppression system activated and discharged a fire extinguishing agent into the area. Thedefendant Fire Guard of Long Island, Inc., installed, maintained, and inspected thesubject fire suppression system. The plaintiffs commenced this action to recover damagesfor personal injuries allegedly sustained by them alleging, among other things, that thedefendants were liable under the doctrine of res ipsa loquitur. At a jury trial, the plaintiffsrequested that the Supreme Court deliver a charge on the doctrine of res ipsa loquitur.The court denied that request. The jury returned a verdict in favor of the defendants,finding that they were not negligent.
Contrary to the plaintiffs' contention, the Supreme Court properly denied theirrequest for a res ipsa loquitur charge. "The doctrine of res ipsa loquitur permits aninference of negligence to be drawn solely from the happening of an accident" (Nikollbibaj v City of NewYork, 106 AD3d 789, 789 [2013]; see Hoeberlein v Bed Bath & Beyond, Inc., 124 AD3d722 [2015]). In order for the doctrine to apply, a plaintiff must establish thefollowing: "(1) the event must be of a kind which ordinarily does not occur in theabsence of someone's negligence; (2) it must be caused by an agency or instrumentalitywithin the exclusive control of the defendant[s]; [and] (3) it must not have been due toany voluntary action or contribution on the part of the plaintiff" (Corcoran v BannerSuper Mkt., 19 NY2d 425, 430 [1967]; see Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006];Pampalone v FBE Van Dam,LLC, 123 AD3d 988, 988-989 [2014]). Here, the plaintiffs failed to demonstratethat the subject event was [*2]one that would notordinarily occur in the absence of someone's negligence (see Abrams v Excellent Bus Serv.,Inc., 91 AD3d 681, 683 [2012]).
The plaintiffs' remaining contention is without merit. Rivera, J.P., Chambers, Sgroiand LaSalle, JJ., concur.