You are here: / / AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING...
,

AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion for summary judgment based upon the res ipsa loquitur theory of liability should have been granted. Plaintiffs’ car was inspected by defendant car dealership and the tires (wheels?) were removed and reattached. When plaintiff Kathleen Becchetti drove the car from the dealership one of the tires (wheels?) detached causing an accident:

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” … . The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause … . The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect … . Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence … .

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence … . Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence … and that the plaintiffs did not contribute to the event … . …

… [S]ince this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” … , the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability. Bicchetti v Atlantic Toyota, 2023 NY Slip Op 03219, Second Dept 6-14-23

Practice Point: Here a wheel fell off plaintiffs’ car after the car was serviced, causing an accident. Although the car was not in the exclusive control of the dealership when the wheel fell off, the negligence occurred when the dealership had exclusive control. This was deemed a rare case warranting summary judgment.

 

You might also like
DOCUMENTS RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, DOCUMENTS SUBMITTED IN REPLY DID NOT SATISFY PLAINTIFF’S BURDEN TO MAKE OUT A PRIMA FACIE CASE (SECOND DEPT).
Failure to Pronounce the Amount of Restitution at Sentencing Survives Waiver of Appeal and Requires Vacation of the Sentences and Remittal
Recommencement of A Dismissed Action Pursuant to CPLR 205 (a) Not Allowed Where Prior Action Was Dismissed for Neglect to Prosecute
THE SENTENCE FOR KIDNAPPING MUST RUN CONCURRENTLY WITH THE SENTENCE FOR FELONY MURDER; MOTION TO VACATE THE CONVICTION PROPERLY BROUGHT PURSUANT TO CRIMINAL PROCEDURE LAW 440.20 (SECOND DEPT).
ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT).
Defects in On-the-Record Waiver of Appeal Not Cured by Written Waiver
CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT).
TO AVOID DISMISSAL PURSUANT TO CPLR 3215 (C) THE PLAINTIFF NEED ONLY TAKE PROCEEDINGS FOR THE ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NEED NOT OBTAIN A DEFAULT JUDGMENT WITHIN A YEAR; ANY DELAYS AFTER THE ONE-YEAR PERIOD ARE IRRELEVANT (SECOND 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

WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS... THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S...