MAROONICK v. RAE REALTY LLC (2022)

Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered March 11, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment as to liability and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to establish her prima facie entitlement to summary judgment based on the doctrine of res ipsa loquitur, as the accident – the collapse of plaintiff's living room ceiling while she was watching a movie – does 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” (Tora v. GVP AG, 31 A.D.3d 341, 342, 819 N.Y.S.2d 730 [1st Dept. 2006]).  Accordingly, this case is not one of the rare instances in which summary judgment as to liability may be granted as a matter of law based on application of the doctrine (see Barney–Yeboah v. Metro–N. Commuter R.R., 120 A.D.3d 1023, 1023–24, 992 N.Y.S.2d 215 [1st Dept. 2014], revd 25 N.Y.3d 945, 6 N.Y.S.3d 549, 29 N.E.3d 896 [2015];  Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006]).

However, plaintiff may rely on res ipsa loquitur to create a permissible inference of negligence that may be accepted by the finder of fact, because she has established the elements of the doctrine – namely, the accident is not the type that would occur in the absence of someone's negligence, defendants had exclusive control of the building's structure, and plaintiff herself did not contribute to the accident (and indeed, defendants do not contend that she did) (see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986];  Mejia v. New York City Tr. Auth., 291 A.D.2d 225, 227, 737 N.Y.S.2d 350 [1st Dept. 2002]).  Additionally, even assuming the absence of any evidence that defendants had actual or constructive notice of the alleged defect, the absence of that evidence is not fatal to plaintiff's claim, because notice is inferred when res ipsa loquitur applies to the accident (see Valdez v. Upper Creston, LLC, 201 A.D.3d 560, 561, 162 N.Y.S.3d 321 [1st Dept. 2022];  Mejia v. Delgado, 160 A.D.3d 588, 588, 75 N.Y.S.3d 14 [1st Dept. 2018]).

As to the cross motion for summary judgment dismissing the complaint, defendants failed to establish their prima facie entitlement to that relief.  Although there is evidence that the ceiling was not maintained while plaintiff lived in the apartment and that there had been leaks from other apartments, neither party has provided an explanation of why the ceiling collapsed.  Further, issues of fact exist on plaintiff's common-law negligence claim as to whether constructive notice of a latent defect in the ceiling may be imputed to defendants because they did not have a program in place for inspecting the ceiling before it collapsed and the ceiling was not inspected for many decades before the accident (see Bentley v. All–Star, Inc., 179 A.D.3d 618, 618–619, 118 N.Y.S.3d 99 [1st Dept. 2020], lv. denied 35 N.Y.3d 971, 125 N.Y.S.3d 17, 148 N.E.3d 481 [2020] Stubbs v. 350 E. Fordham Rd., LLC, 117 A.D.3d 642, 643–644, 988 N.Y.S.2d 579 [1st Dept. 2014];  Sanders v. Morris Hgts. Mews Assoc., 69 A.D.3d 432, 433, 892 N.Y.S.2d 99 [1st Dept. 2010]).