Opinion
December 31, 1997
Present — Denman, P.J., Lawton, Hayes, Balio and Boehm, JJ.
Order unanimously reversed on the law without costs and summary judgment against defendants and third-party defendants denied. Memorandum: Supreme Court erred in granting plaintiff summary judgment against defendants and third-party defendants based on the doctrine of res ipsa loquitur. Plaintiff did not move for summary judgment against third-party defendants on that ground and, more importantly, did not assert any claim against them. In any event, the doctrine of res ipsa loquitur "merely permits the jury to infer negligence from the circumstances of the occurrence. The jury is thus allowed — but not compelled — to draw the permissible inference" ( Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 495). Consequently, the doctrine of res ipsa loquitur does not entitle a plaintiff to summary judgment. (Appeals from Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.)