You are here: / / RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE...
, , ,

RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff properly raised res ipsa loquitur in opposition to defendant’s motion for summary judgment even though the notice of claim and the complaint did not allege it. Res ipsa loquitur is not a theory of liability, it is a rule of evidence:

Plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment and as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant’s motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but rather, an evidentiary rule that involves “‘a common sense application of the probative value of circumstantial evidence'” … . Plaintiff’s evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for nearly 19 years, she would contact defendant’s employees to remedy any issues with the circuit box, and defendant’s employees handled the inspection, maintenance, and repair of the circuit box … . To the extent defendant argues its lack of notice of the alleged dangerous condition, a triable issue of fact exists here regarding the applicability of the res ipsa doctrine, and proof of notice of a dangerous condition may be inferred under the doctrine … . Townsend v New York City Hous. Auth., 2020 NY Slip Op 05874, First Dept 10-20-20

 

You might also like
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL TOLD HIM HE “MOST LIKELY” WOULD BE DEPORTED WHEN DEPORTATION WAS MANDATORY; APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA; ONE DISSENT (FIRST DEPT).
All Ambiguities Re: Letters of Credit Resolved Against the Issuer—“Independence Principle” Applied—Beneficiaries of Letters of Credit Entitled to Payment
Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth
THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).
ALTHOUGH THE FREE-STANDING BRACE FRAME WAS AT THE SAME LEVEL AS PLAINTIFF AT THE TIME IT FELL OVER, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).
ALTHOUGH DEFENDANT LANDLORD DID NOT DEMONSTRATE WHEN THE STAIRS WERE LAST CLEANED OR INSPECTED, PLAINTIFF’S DEPOSITION TESTIMONY ESTABLISHED THE WETNESS ON WHICH SHE SLIPPED AND FELL COULD NOT HAVE BEEN PRESENT FOR MORE THAN AN HOUR, THEREFORE THE LANDLORD HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).
AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT).
CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NYC POLICE OFFICERS IN THE TIER 3 RETIREMENT SYSTEM ARE ENTITLED TO CREDIT FOR... DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THERE WAS PROBABLE CAUSE...