ASHKENAZI v. CITY OF NEW YORK (1997)

Supreme Court, Appellate Division, First Department, New York.

Shela ASHKENAZI, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: May 08, 1997

Before SULLIVAN, J.P., and MILONAS, NARDELLI, WILLIAMS and MAZZARELLI, JJ.

Jonathan D. Warner, for Plaintiff-Appellant. Pamela Seider Dolgow, for Defendants-Respondents.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered October 11, 1996, which denied plaintiff's motion for partial summary judgment on the issue of liability, and granted defendants' cross motion to vacate an admission to a notice to admit, unanimously affirmed, without costs.

The motion court, in considering plaintiff's motion for partial summary judgment, properly refused to apply the doctrine of res ipsa loquitur in that it has not been established that the tile that struck plaintiff in the head, as she was walking down a street in front of defendants' school building, came from the school building, and, assuming it did, that defendants had exclusive control over it. In addition, the purported admission, by way of nonresponse to plaintiff's notice to admit, that the tile was dropped from one of two windows of the school building was properly vacated as bearing upon an ultimate issue that should more appropriately be explored through other disclosure devices (see, Taylor v. Blair, 116 A.D.2d 204, 206, 500 N.Y.S.2d 133).

MEMORANDUM DECISION.

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