Opinion
12121 Index No. 302927/16 Case No. 2019-03285
10-20-2020
Mone A. TOWNSEND, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Bernstone & Grieco, LLP, New York (Dylan M. Helfand of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondent.
Bernstone & Grieco, LLP, New York (Dylan M. Helfand of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondent.
Acosta, P.J., Mazzarelli, Moulton, Gonza´lez,JJ.
Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered on or about July 1, 2019, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment and as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant's motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but rather, an evidentiary rule that involves " ‘a common sense application of the probative value of circumstantial evidence’ " ( Ianotta v. Tishman Speyer Props., Inc., 46 A.D.3d 297, 299, 852 N.Y.S.2d 27 [1st Dept. 2007] [citation omitted]; see also Horowitz v. New York City Hous. Auth., 188 A.D.2d 392, 591 N.Y.S.2d 382 [1st Dept. 1992] ). Plaintiff's evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for nearly 19 years, she would contact defendant's employees to remedy any issues with the circuit box, and defendant's employees handled the inspection, maintenance, and repair of the circuit box (see Pavon v. Rudin, 254 A.D.2d 143, 145–147, 679 N.Y.S.2d 27 [1st Dept. 1998] ; Nesbit v. New York City Tr. Auth., 170 A.D.2d 92, 98–99, 574 N.Y.S.2d 179 [1st Dept. 1991] ). To the extent defendant argues its lack of notice of the alleged dangerous condition, a triable issue of fact exists here regarding the applicability of the res ipsa doctrine, and proof of notice of a dangerous condition may be inferred under the doctrine (see Carter v. New York City Hous. Auth., 176 A.D.3d 605, 606, 112 N.Y.S.3d 38 [1st Dept. 2019] ; Ezzard v. One E. Riv. Place Realty Co., LLC, 129 A.D.3d 159, 163, 8 N.Y.S.3d 195 [1st Dept. 2015] ; Mejia v. Delgado, 160 A.D.3d 588, 75 N.Y.S.3d 14 [1st Dept. 2018] ).