ZURLO v. METROPOLITAN TRANSIT AUTHORITY (2000)

Judgment unanimously affirmed without costs.

 Submission of a case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements:  (1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence;  (2) the instrumentality causing the accident was within defendant's exclusive control;  and (3) the accident was not due to any voluntary action or contribution by plaintiff (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 501 N.Y.S.2d 784, 492 N.E.2d 1200;  citing Corcoran v. Banner Super Market, 19 N.Y.2d 425, 430, 280 N.Y.S.2d 385, 227 N.E.2d 304, mod. on remittitur 21 N.Y.2d 793, 288 N.Y.S.2d 484, 235 N.E.2d 455;  see also, Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 512 N.E.2d 297).

 It is the second of the required three elements-exclusive control-which is critical here.   The exclusive control requirement “is not an absolutely rigid concept, but is subordinate to its general purpose, that of indicating that it was probably the defendant's negligence which caused the accident in question” (Nesbit v. New York City Tr. Auth., 170 A.D.2d 92, 98, 574 N.Y.S.2d 179;  Corcoran v. Banner Super Market, supra;  see also, Pavon v. Rudin, 254 A.D.2d 143, 679 N.Y.S.2d 27;  Pollock v. Rapid Indus. Plastics Co., 113 A.D.2d 520, 497 N.Y.S.2d 45).   In this case, the evidence indicated that it was “probably” the defendants' negligence which caused the brake shoe to fly off the defendants' moving train and hit the plaintiff on the head, and “probably” not the negligence of another.   Thus, the subject res ipsa loquitur charge was appropriate.

MEMORANDUM.