JAINSINGHANI v. ONE VANDERBILT OWNER LLC (2018)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered October 31, 2017, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on liability on the basis of res ipsa loquitur, unanimously affirmed, without costs.

Plaintiff seeks to recover damages for injuries that she allegedly sustained when she was hit in the head by a plexiglass cover from a lighting fixture underneath a sidewalk bridge erected on a construction and demolition project on which defendant Waldorf Exteriors, LLC d/b/a/ Waldorf Demolition (Waldorf) was the general contractor.

Subsequently, on September 25, 2015, the Department of Buildings issued a notice of violation pursuant to Building Code § 3301.2 for failure to safeguard personnel and property noting that “plexiglass from signage that was attached to the exterior of the building came loose” and struck plaintiff in the head while she walked under the sidewalk bridge.  A hearing was thereafter held before the City of New York Environmental Control Board on the violation.  Waldorf was found to be in violation of, inter alia, Building Code § 3301.2. A civil penalty was assessed.

The IAS court properly denied plaintiff's motion seeking partial summary judgment on liability.  Summary judgment under res ipsa loquitur is appropriate only in “exceptional cases” and not where, as here, there are issues of fact with respect to the exclusivity of control over the instrumentality that allegedly caused the injury (see Galue v. Independence 270 Madison LLC, 119 A.D.3d 403, 988 N.Y.S.2d 483 [1st Dept. 2014];  Spearin v. Linmar, L.P., 137 A.D.3d 571, 572, 27 N.Y.S.3d 156 [1st Dept. 2016] ).

It is undisputed that a large red-tile composed of composite material fell and struck plaintiff and her co-worker.  A photograph proffered by plaintiff, taken prior to the occurrence of the accident, before work began at the construction site, depicts a MTA fixture surrounded by red tile affixed to 51 East 42nd Street.  On this record, plaintiff has not established that the owner, One Vanderbilt, or Waldorf had exclusive control over the MTA fixture (see Kosakowski v. 1372 Broadway Assoc., LLC, 160 A.D.3d 567, 74 N.Y.S.3d 553 [1st Dept. 2018].

Although Waldorf violated the Building Code, this only constitutes “mere evidence of negligence and not negligence per se” (Vasquez v. Soriano, 106 A.D.3d 545, 545, 965 N.Y.S.2d 121 [1st Dept. 2013];  see also Elliott v. City of New York, 95 N.Y.2d 730, 724 N.Y.S.2d 397, 747 N.E.2d 760 [2001] ).

Furthermore, the affidavit of Waldorf's expert created issues of fact as to whether “the inference of [Waldorf's] negligence is inescapable” (Morejon v. Rais Const. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006] ).  Plaintiff failed to rebut the expert's opinion.  Thus, summary judgment was inappropriate (see Morejon v. Rais Const. Co., 7 N.Y.3d 203, 207, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006] ).