You are here: / / SUMMARY JUDGMENT PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR WAS NOT...
,

SUMMARY JUDGMENT PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR WAS NOT WARRANTED BECAUSE EXCLUSIVE CONTROL WAS NOT DEMONSTRATED; SANCTIONS FOR THE LOSS OF THE LIGHT FIXTURE WHICH FELL ON PLAINTIFF WERE NOT WARRANTED BECAUSE THE BENT PIPE TO WHICH THE FIXTURE WAS ATTACHED WAS PRESERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted pursuant to the doctrine of res ipsa loquitur. Plaintiff was injured when a light fixture fell on him. The pipe to which the fixture was attached was bent and was preserved by the defendant. The light fixture, which was same as several others at the site, was not preserved. Because contractors were working at the site, and the pipe securing the light fixture was bent. it could not be said defendant exercised exclusive control over the fixture. The Second Department went on to find that sanctions for the loss of the light fixture were not warranted because the bent pipe was saved and the light fixture itself was not crucial evidence:

Res ipsa loquitur is a doctrine which is submitted to the finder of fact when the accident arises out of an event which ordinarily does not occur in the absence of negligence, the accident was caused by an agency or instrumentality within the exclusive control of the defendant, and it was not due to a voluntary action or contribution on the part of the plaintiff … . The Court of Appeals has held that “only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … . Cantey v City of New York, 2020 NY Slip Op 03213, Second dept 6-10-20

 

You might also like
ALTHOUGH COMPLAINANT DID NOT DEMONSTRATE SHE WAS DISCRIMINATED AGAINST BY THE COOPERATIVE BASED UPON A DISABILITY, COMPLAINANT DID DEMONSTRATE THE COOPERATIVE IMPROPERLY RETALIATED AGAINST HER AFTER SHE FILED THE DISCRIMINATION COMPLAINT WITH THE NYS DIVISION OF HUMAN RIGHTS.
DEFENDANT DID NOT PRESENT EVIDENCE THAT THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS INSPECTED OR TREATED ON THE DAY OF THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFFS WERE ENTITLED TO AMEND THE BILL OF PARTICULARS TO THE EXTENT THE AMENDMENT AMPLIFIED THE ALLEGATIONS ALREADY MADE WITHOUT OBJECTION IN THE SUPPLEMENTAL BILL OF PARTICULARS (SECOND DEPT).
FRAUD CAUSES OF ACTION DID NOT MEET PLEADING REQUIREMENTS.
ALTHOUGH THE QUESTION WHETHER THE NOTICE REQUIREMENTS OF RPAPL 1304 APPLIED ONLY TO HIGH-COST OR SUBPRIME LOANS WAS NOT RAISED BELOW, THE QUESTION WAS CONSIDERED AND REJECTED ON APPEAL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED.
ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

THE HOLDER OF A DEED INTENDED AS SECURITY IN THE NATURE OF A MORTGAGE MUST PROCEED... BANK DID NOT PROVE COMPLIANCE WITH RPAPL 1303; BANK’S MOTION FOR SUMMARY...