Opinion
March 29, 1995
Appeal from the Supreme Court, Richmond County (Amann, J.).
Ordered that the order is affirmed, with costs.
The instant action was commenced by the plaintiffs to recover damages sustained by the plaintiff Raymond Raimondi when the seat in which he was sitting in the grandstand of the defendant's racetrack collapsed. At trial, after the plaintiff failed to present proof that the defendant had actual or constructive notice of any defect in the seat, 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.
It is well established that the submission of a case to the jury on a 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 plaintiffs' proof failed to adequately satisfy the second element of "exclusive control". While it is true that a plaintiff need not establish that there was only a single person or entity in control of the item that caused the injury (see, Butti v. Rollins, 133 A.D.2d 205), the evidence herein did not show control of the seat by the defendant of sufficient exclusivity to fairly rule out the chance that any purported defect in the seat was caused by some agency other than the defendant's negligence (see, Dermatossian v. New York City Tr. Auth., supra, at 228). In this case involving a racetrack where thousands of people go every day, the proof did not adequately exclude the chance that the seat had been damaged by one or more of the defendant's patrons who were invited to use it (see, Dermatossian v. New York City Tr. Auth., supra; see also, Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621; Troisi v. Merit Oil Co., 208 A.D.2d 615; DeSimone v. Inserra Supermarkets, 207 A.D.2d 615; Ventola v. State of New York, 38 Misc.2d 321, affd 21 A.D.2d 964; cf., Finocchio v. Crest Hollow Club, 184 A.D.2d 491).
To the extent that Sasso v. Randforce Amusement Corp. ( 243 App. Div. 552, 553) can be read to the contrary, we decline to follow it. Balletta, J.P., Thompson, Lawrence and Goldstein, JJ., concur.