Opinion
July 3, 1997
Appeal from Supreme Court, Bronx County (Hansel McGee, J.).
Res ipsa loquitur was properly charged upon proof establishing that the 100-pound marble cover of the crypt in which plaintiffs brother was interred pending final burial spontaneously dislodged and fell, striking plaintiff in the face. No expert testimony was needed for the jury to conclude that the sudden dislodging of a crypt cover would not happen without someone's negligence ( cf., Kambat v. St. Francis Hosp., 89 N.Y.2d 489,496-497). Defendant's exclusive control was established by the proof that the crypt in question was in a mausoleum used by defendant for temporary interment, that the crypt covers were routinely taken off, and put back on, only by defendant's employees, and that the knobs that operated the locking mechanism were very difficult to turn, often requiring defendant's employees to use a special instrument to do so, and making it unlikely that a member of the public could have compromised the fastness of the crypt cover ( cf., Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621). Nor was there any evidence permitting an inference that the event occurred due to any voluntary action or contribution by plaintiff. We are unpersuaded by defendant's claim of surprise by the introduction of res ipsa into the case since the complaint did allude to the "common law doctrine of res ipsa loquitur" in addition to alleging negligent installation and maintenance. In any event, even if res ipsa had not been pleaded, allowing plaintiff, at the close of her case, to amend her pleading to conform to her proof of res ipsa, could not have prejudiced defendant, and was an appropriate exercise of discretion under CPLR 3025 (c). We have considered defendant's remaining claims and find them to be without merit.
Concur — Milonas, J. P., Nardelli, Williams, Mazzarelli and Andrias, JJ.