Opinion
2017–00018 Index No. 26014/11
03-20-2019
Adelaide DILLIGARD, Respondent, v. CITY OF NEW YORK, et al., Appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Devin Slack and Diana Lawless of counsel), for appellant. Berkowitz & Weitz, P.C., New York, N.Y. (Andrew D. Weitz of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Devin Slack and Diana Lawless of counsel), for appellant.
Berkowitz & Weitz, P.C., New York, N.Y. (Andrew D. Weitz of counsel), for respondent.
REINALDO E. RIVERA, J.P. SHERI S. ROMAN JEFFREY A. COHEN SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated November 4, 2016. The order, insofar as appealed from, granted the plaintiff's motion for summary judgment on the issue of liability and denied that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment on the issue of liability is denied, and that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York is granted.
The plaintiff was a public school teacher employed by the defendant New York City Department of Education (hereinafter the DOE), an agency of the defendant City of New York. The plaintiff allegedly was injured when the face plate of an air-conditioning unit in her classroom fell on her head and right hand. The plaintiff commenced this action against the City and the DOE to recover damages for the personal injuries she allegedly sustained.
The plaintiff testified at her deposition that she was administering a test to her special education students when a student entered the classroom late. The student was disruptive and eventually "stormed out" of the classroom, "slamming" the door behind her. The plaintiff used the telephone in the classroom to call the school office about the disruptive student. While the plaintiff was on the telephone, the face plate of the overhead air-conditioning unit, which was in the window above her, fell and struck her.
According to the deposition testimony of Edward Perez, the custodian engineer at the school, the air conditioning unit was not regularly inspected by the DOE, or by outside contractors. He testified that DOE employees changed the air filters of the air conditioners in the school once per year, at the end of May, approximately 10 months prior to the accident. DOE employees do not otherwise inspect, maintain, or repair the air conditioners. If a report is made that an air conditioner is not working, a private contractor is called to fix or replace the unit. The plaintiff moved for summary judgment on the issue of liability based on the doctrine of res ipsa loquitur. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint. The Supreme Court granted the plaintiff's motion and denied the defendants' cross motion. The defendants appeal from so much of the order as granted the plaintiff's motion and denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against the City.
To establish a prima facie case of negligence under the doctrine of res ipsa loquitur, a plaintiff must establish that (1) the event is of a kind that ordinarily does not occur absent negligence; (2) the event was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the plaintiff did not voluntarily create or contribute to the event (see James v. Wormuth , 21 N.Y.3d 540, 546, 974 N.Y.S.2d 308, 997 N.E.2d 133 ; Marinaro v. Reynolds , 152 A.D.3d 659, 661, 59 N.Y.S.3d 87 ). The doctrine allows the finder of fact to infer that the defendant was negligent, but does not require that it do so (see Morejon v. Rais Constr. Co. , 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 ; Marinaro v. Reynolds , 152 A.D.3d at 661, 59 N.Y.S.3d 87 ). Res ipsa does not create a presumption of negligence ( Marinaro v. Reynolds , 152 A.D.3d at 661, 59 N.Y.S.3d 87 ). "In those cases where ‘conflicting inferences may be drawn, choice of inference must be made by the jury’ " ( Kambat v. St. Francis Hosp. , 89 N.Y.2d 489, 495, 655 N.Y.S.2d 844, 678 N.E.2d 456, quoting Foltis, Inc. v. City of New York , 287 N.Y. 108, 118, 38 N.E.2d 455 ). "[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment" ( Morejon v. Rais Constr. Co. , 7 N.Y.3d at 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 ). Summary judgment is appropriate in res ipsa cases only where "the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" ( id. ). Res ipsa "does not ordinarily or automatically entitle the plaintiff to summary judgment ... even if the plaintiff's circumstantial evidence is unrefuted" ( id. ).
Here, although the plaintiff demonstrated, prima facie, that a face plate falling off an air conditioner is an event of a kind that ordinarily does not occur absent negligence (see Matsur v. New York City Tr. Auth. , 66 A.D.3d 848, 849, 888 N.Y.S.2d 531 ; Bonventre v. Max , 229 A.D.2d 557, 558, 645 N.Y.S.2d 867 ), the defendants raised a triable issue of fact as to whether the face plate could have fallen off the air conditioner because of the slamming of the door and not as a result of negligence (see Imhotep v. State of New York , 298 A.D.2d 558, 559, 750 N.Y.S.2d 87 ).
Furthermore, while the plaintiff demonstrated, prima facie, that the elevated air-conditioning unit was in the defendants' exclusive control (see Fields v. King Kullen Grocery Co. , 28 A.D.3d 513, 514, 813 N.Y.S.2d 495 ), the defendants raised a triable issue of fact through their submissions, which demonstrated that outside contractors were responsible for the repairs and installations of air conditioning units in the school. Exclusive control is not established when third-party contractors have access to an instrumentality causing injuries (see Brennan v. Wappingers Cent. Sch. Dist. , 164 A.D.3d 640, 83 N.Y.S.3d 260 ; see also Lococo v. Mater Cristi Catholic High School , 142 A.D.3d 590, 591, 37 N.Y.S.3d 134 ).
The plaintiff argues that even if she failed to demonstrate her prima facie entitlement to judgment as a matter of law under the res ipsa loquitur doctrine, she is entitled to summary judgment because the defendants created the dangerous condition and had constructive notice of the defect. This contention, however, was not raised in the plaintiff's motion papers, and therefore, is not properly before this Court (see Rotundo v. S & C Magnetic Resonance Imaging , 255 A.D.2d 573, 574, 681 N.Y.S.2d 68 ; see also 159 MP Corp. v. Redbridge Bedford, LLC , 160 A.D.3d 176, 186, 71 N.Y.S.3d 87 ; Matter of 148 S. Emerson Partners, LLC v. 148 S. Emerson Assoc., LLC , 157 A.D.3d 887, 889, 70 N.Y.S.3d 213 ). Accordingly, the plaintiff's motion for summary judgment on the issue of liability should have been denied.
With respect to their cross motion, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against the City by showing that the accident occurred on public school premises, and that the City does not operate, maintain, or control the public schools (see Mosheyev v. New York City Dept. of Educ. , 144 A.D.3d 645, 646, 39 N.Y.S.3d 832 ; Falzone v. City of New York , 128 A.D.3d 889, 890, 9 N.Y.S.3d 165 ; Mathis v. Board of Educ. of City of N.Y. , 126 A.D.3d 951, 953, 7 N.Y.S.3d 182 ; Cohen v. City of New York , 119 A.D.3d 725, 725–726, 989 N.Y.S.2d 296 ). In opposition, the plaintiff failed to raise a triable issue of fact as to the City's liability. Accordingly, the branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the City should have been granted.
RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.