Opinion
December 9, 1999
Order, Supreme Court, New York County (Emily Goodman, J.), entered April 27, 1999, which denied the motion of defendant Trustees of St. Patrick's Cathedral for summary judgment with respect to the first cause of action (based on common law negligence) while granting summary dismissal of the remaining three causes (based upon Labor Law claims), unanimously modified, on the law, the motion granted with respect to the first cause of action as well, the complaint dismissed as against said defendant only, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.
Steven B. Dorfman for Plaintiff-Respondent.
Karen A. Corcoran for Defendant-Appellant.
SULLIVAN, J.P., MAZZARELLI, WALLACH, FRIEDMAN, JJ.
Plaintiff, a maintenance worker at St. Patrick's Cathedral, was struck in the head by a falling piece of pipe that had been recently installed by co-defendant Active Fire Sprinkler Corp. In moving for summary judgment dismissing the negligence claim, the St. Patrick's Trustees also sought summary judgment over against Active Fire Sprinkler on the ground of indemnification, Active having allegedly breached its contractual obligation to obtain liability insurance covering St. Patrick's. In light of our disposition, we need not reach the IAS court's denial of that portion of the Trustees' motion.
On this appeal, plaintiff argued in support of its common law claim against St. Patrick's on the ground of res ipsa loquitur, the unknown cause of the accident being entirely within the defendant's control. But "exclusive control" of the instrumentality of injury is an essential element of this doctrine (Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621), and here the record establishes that Active Fire Sprinkler had been working on the pipe installation for several months, covering the period preceding and following the accident. Under these circumstances, St. Patrick's could not have had exclusive control over the pipe in question. The testimony of Active's steam fitter employee, to the effect that he saw laundry hanging from other portions of pipe upon his inspection of the area sometime after the date of the accident, was insufficient to establish St. Patrick's acquisition and exercise of exclusive control over the instrumentality of injury.
Motion seeking stay dismissed as academic.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.