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
EXCULPATORY (BRADY) EVIDENCE IN THE COMPLAINANT’S MENTAL HEALTH RECORDS WAS REDACTED BY THE JUDGE; TWO INDICTMENT COUNTS WERE MULTIPLICITOUS; NEW TRIAL ORDERED IN THIS SEXUAL ABUSE CASE (SECOND DEPT).
WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).
Jury Instructions Which Lumped Counts Together and Did Not Give the Jury the Information Necessary to Distinguish One Count from Another Mandated a New Trial
THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED BECAUSE IT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED (HEARSAY) (SECOND DEPT). ​
THE ACTION WAS NOT COMMENCED UNTIL TEN DAYS BEFORE THE STATUTE OF LIMITATIONS EXPIRED AND PLAINTIFF’S COUNSEL DID NOT TIMELY COMPLETE SERVICE BY MAILING THE SUMMONS AND COMPLAINT; PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF TIME TO SERVE THE DEFENDANT BECAUSE LAW OFFICE FAILURE PRECLUDED AN EXTENSION FOR GOOD CAUSE AND THE LACK OF DILIGENCE PRECLUDED AN EXTENSION IN THE INTEREST OF JUSTICE (SECOND DEPT).
BANK’S PROOF OF DEFAULT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THE PROOF OF MAILING OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 NOTICE WAS DEFICIENT, BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE PRESUMPTION OF SUGGESTIVENESS RAISED BY THE PEOPLE’S FAILURE TO PRESENT THE PHOTO ARRAYS USED BY THE WITNESS TO IDENTIFY THE DEFENDANT WAS OVERCOME BY THE EVIDENCE OF THE SHEER NUMBER OF PHOTOS VIEWED BY THE WITNESS (SECOND DEPT).
VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS.

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
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...