Because the machinery was, for its very purpose, subject to manipulation by numerous other students, it cannot be said that the machinery was within defendant's exclusive control.See Dermattossian, 67 N.Y.2d at 228 (the fact that a grab handle on a city bus was continuously available for use by defendant's passengers indicated that defendant was not in exclusive control of the handle); Chini v. Wendcentral Corp., Inc., 692 N.Y.S.2d 533, 533 (4th Dep't 1999) (the fact that defendant restaurant's customers had continuous access to a chair in the restaurant meant that defendant did not have exclusive control of the chair). Plaintiff argues that defendant had a policy of disciplining students who touched or operated the equipment without express permission, and therefore the equipment was in defendant's exclusive control.
See, e.g., Rivera-Emerling v. M. Fortunoff of Westbury Corp., 281 A.D.2d 215, 217, 721 N.Y.S.2d 653, 655 (1st Dep't 2001) (res ipsa loquitur not applicable because collapsing chair "was on an open sales floor to which innumerable shoppers had access. Hence, there was no basis for concluding that defendant had exclusive control of the chair."); Chini v. Wendcentral Corp., 262 A.D.2d 940, 692 N.Y.S.2d 533 (4th Dep't 1999) (no exclusive control over chair in restaurant where defendant's customers "had continuous access to the chair"); Ruggiero v. Waldbaums Supermarkets, Inc., 242 A.D.2d 268, 269, 661 N.Y.S.2d 37, 39 (2d Dep't 1997) (six-pack of juice cans not in defendant's exclusive control because "the juice cans may have been dislodged by one or more prior shoppers"); Meegan v. Westbury Property Investment Co., 234 A.D.2d 433, 651 N.Y.S.2d 152, 153 (2d Dep't 1996) (display gondola which fell on plaintiff not in defendant's exclusive control because general public had "unfettered access" to gondola).Accord Ebanks, 70 N.Y.2d at 623, 518 N.Y.S.2d at 777 (no exclusive control over escalator at subway station "used by approximately 10,000 persons weekly"); St. Paul Fire, 907 F.2d at 303 ( res ipso loquitur inapplicable because room in which flood started was unlocked, and hence "anyone with access to the seventh floor could have walked right into the room"); Velez v. Sebco Laundry Sys., Inc., No. 00 CIV 5
We reject plaintiffs' alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies. That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff's injuries,” i.e., the chair (Moore v. Ortolano, 78 A.D.3d 1652, 1653, 912 N.Y.S.2d 362; see Chini v. Wendcentral Corp., 262 A.D.2d 940, 940, 692 N.Y.S.2d 533, lv. denied94 N.Y.2d 752, 700 N.Y.S.2d 426, 722 N.E.2d 506). Specifically, “[t]he record is devoid of evidence that defendant's control of the chair, located in a restaurant open to the public where innumerable patrons had access to the chair, was sufficiently exclusive ‘to fairly rule out the chance that the defect ... was caused by some agency other than defendant's negligence’ ” (Hardesty v. Slice of Harlem, II, LLC, 79 A.D.3d 472, 472, 911 N.Y.S.2d 624, quoting Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200; see Loiacono, 29 A.D.3d at 538, 814 N.Y.S.2d 695; Chini, 262 A.D.2d at 940, 692 N.Y.S.2d 533). The restaurant at issue is open to the public five days per week for breakfast and lunch, and plaintiff's wife testified that “ everybody sits at th [e] table” where the allegedly defective chair was located, and that “[i]t's like a social gathering table.” All concur except VALENTINO and WHALEN, JJ., who dissent and vote to affirm in t
The subject chair was located in a hallway outside a classroom, giving numerous persons access to it and, thus, BOCES did not have exclusive control over it. Consequently, under the circumstances here, the plaintiff could not invoke the doctrine of res ipsa loquitur ( see Miles v. Hicksville U.F.S.D., 56 A.D.3d at 626, 867 N.Y.S.2d 537; Dulgov v. City of New York, 33 A.D.3d 584, 585, 822 N.Y.S.2d 298; Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d at 538, 814 N.Y.S.2d 695; Chini v. Wendcentral Corp., 262 A.D.2d 940, 692 N.Y.S.2d 533). Accordingly, the Supreme Court properly granted BOCES's motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, the doctrine of res ipsa loquitur does not apply to this case with respect to the owners. Indeed, the record does not support plaintiff's allegation that the owners' control of the concrete stairs at the warehouse was "sufficiently exclusive `to fairly rule out the chance that the defect . . . was caused by some agency other than [the owners'] negligence'" ( Chini v Wendcentral Corp., 262 AD2d 940, lv denied 94 NY2d 752, quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228).
neral awareness that a dangerous condition might exist, which is an insufficient predicate for liability in the absence of notice of the particular condition which caused the injured plaintiff's fall ( see Piacquadio v. Recine Realty Corp., 84 NY2d 967). The plaintiffs failed to raise a triable issue of fact as to notice of the particular condition. Furthermore, the Supreme Court properly concluded that the doctrine of res ipsa loquitur was inapplicable, since the evidence established that the defendants did not have exclusive control over the chair which collapsed ( see Dermatossian v. New York City Tr. Auth., 67 NY2d 219). The defendant bagel shop was open to the public for more than six hours before the plaintiff's accident, and the defendant John DeSimone, one of the owners of the bagel shop, averred in an affidavit in support of the motion, that many customers sat on the chair before the injured plaintiff did ( see Rivera-Emerling v. M. Fortunoff of Westbury Corp., 281 AD2d 215; Chini v. Wendcentral Corp., 262 AD2d 940).
Thus, numerous individuals had access to said chair and defendant did not have exclusive control over it (see Lawrence v Rockland County Bd. of Cooperative Educ. Services, 93 AD3d 766, 940 NYS2d 321; Miles v Hicksville U.F.S.D., 56 AD3d 625, 626, 867 NYS2d 537; Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537, 814 NYS2d 695; Chini v Wendcentral Corp. Inc., 262 AD2d 940, 692 NYS2d 533 [4th Dept 1999] lv denied 94 NY2d 752, 700 NYS2d 426 [1999]; cf.Tyndale v St. Francis Hosp., 65 AD3d 1133, 886 NYS2d 51; Finocchio v Crest Hollow Club at Woodbury, Inc., 184 AD2d 491, 584 NYS2d 201 [2d Dept 1992]). Therefore, the insufficiency and lack of merit of plaintiff's proposed amendment to add the claim of res ipsa loquitur is clear and free from doubt such that plaintiff's request for leave to amend her bill of particulars is denied (see Southwell v Middleton, 67 AD3d 666, 890 NYS2d 57 [2d Dept 2009]; see also id.).