RIVERA v. CONTRACTING LLC (2024)

Order, Supreme Court, New York County (David B. Cohen, J.), entered March 14, 2024, which denied plaintiff's motion for summary judgment against defendants as to the issue of liability based on the doctrine of res ipsa loquitur, unanimously affirmed, without costs.

Plaintiff was injured while walking on Pearl Street in lower Manhattan when fencing installed by defendant F & S Contracting fell on her.  The fencing was composed of a base of plastic Yodock barriers, which are designed to be stabilized when filled with water and attached to one another, and a top composed of chain link fence held up by poles inserted into the Yodock barriers.  Fabric was attached to the chain link fencing with plastic ties.  Surveillance videos appear to show a portion of the fence tipping over onto plaintiff due to wind acting on the fabric like a sail.

Plaintiff argues that the motion court erred in not granting her motion for summary judgment on the basis of res ispa loquitor.  However, the facts here do not present a situation in which “the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable” (Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006];  see also Maroonick v. Rae Realty, LLC, 205 A.D.3d 423, 423, 168 N.Y.S.3d 43 [1st Dept. 2022]; Tora v. GVP AG, 31 A.D.3d 341, 342, 819 N.Y.S.2d 730 [1st Dept. 2006]).  The affidavit of defendants’ meteorologist stating that unexpected and powerful wind gusts at the time and place of the accident were strong enough to topple an object as heavy as the subject fence is sufficient to negate, at least for purposes of summary judgment, the first element of res ipsa loquitur (see id.).  Since the facts surrounding the accident are disputed, this case is not one of the rare instances in which summary judgment as to liability may be granted based on the application of res ipsa loquitur (see Maroonick, 205 A.D.3d at 423, 168 N.Y.S.3d 43;  see also Aponte v. City of New York, 143 A.D.3d 552, 39 N.Y.S.3d 151 [1st Dept. 2016];  cf.  Valdez v. Upper Creston, LLC, 201 A.D.3d 560, 561, 162 N.Y.S.3d 321 [1st Dept. 2022]).

We have reviewed plaintiff's remaining contentions and find them unavailing.