Opinion
October 11, 1994
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff commenced this action to recover for damages he sustained when, while filling his car with gasoline at the defendant's self-serve gas station, the hose burst, spraying him with gasoline. At trial, after the plaintiff failed to present proof that the defendant had actual or constructive notice of the defect in the hose, the defendant moved for judgment as a matter of law. The plaintiff argued that no such evidence was necessary, as the doctrine of res ipsa loquitur was applicable. The trial court disagreed, and dismissed the complaint. We affirm. "In New York it is the general rule that submission of the case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: `"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff"' (Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 430, mod on remittitur 21 N.Y.2d 793 [quoting from Prosser, Torts § 39, at 218 (3d ed)])" (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226). Here, the gasoline hose was continuously available for use by the defendant's customers and, thus, was not within the defendant's exclusive control. Moreover, the occurrence was not "of a kind which ordinarily does not occur in the absence of someone's negligence" (Dermatossian v. New York City Tr. Auth., supra, at 228). Accordingly, the court appropriately refused to apply the doctrine of res ipsa loquitur to the plaintiff's case, and the plaintiff's complaint was properly dismissed. Rosenblatt, J.P., O'Brien, Ritter and Florio, JJ., concur.