Opinion
2002-728 K C.
Decided December 10, 2003.
Appeal by plaintiff from a judgment of the Civil Court, Kings County (G. Wright, J.), entered February 4, 2002, which dismissed his complaint.
Judgment unanimously affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
Plaintiff brought this action to recover for damage to his vehicle which was alleged to have been sustained as a result of a collision with defendant's vehicle. At the trial, plaintiff relied upon the doctrine of res ipsa loquitur to show that his vehicle was damaged as a result of defendant's negligence, since neither plaintiff nor his wife, who testified on his behalf, were present at the time of the accident, and were unable by themselves or through eyewitnesses to show the circumstances of the accident.
Under the doctrine of res ipsa loquitur, the plaintiff is required to establish that an accident of the type which occurred does not ordinarily occur in the absence of negligence, that the instrumentality causing the accident was in the defendant's exclusive control, and that the accident was not due to any voluntary act of the plaintiff ( see Dermatossian v. New York City Tr. Auth., 67 NY2d 219, 226). When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident, based on the theory that "certain occurrences contain within themselves a sufficient basis for an inference of negligence" ( see Foltis, Inc. v. City of New York, 287 NY 108, 116). The doctrine, however, creates only a permissible inference, i.e., the trier of the fact is permitted to infer negligence but is not required to do so. While there is no burden of rebuttal on the part of a defendant ( see Foltis. Inc. v. City of New York, 287 NY at 118; Davis v. Goldsmith, 19 AD2d 514), a defendant may choose to come forward with an explanation to show that the accident did not occur due to any want of care on his or her part.
Since res ipsa loquitur has been applied in cases where a moving vehicle collides with a vehicle that is at rest or properly parked ( see e.g., Bondar v. Ar Jay Paint Co., 20 Misc 2d 643 [App Term, 2nd Dept 1959]), in this case, where plaintiff's vehicle was lawfully parked at the time it was hit, application of the doctrine was appropriate. We find, however, that defendant herein effectively rebutted the inference of negligence through his testimony and by the submission of photographic evidence. Accordingly, the court below did not err in dismissing the action.