MOLINA v. STATE (2007)

In a claim to recover damages for personal injuries, the claimant appeals from (1) a decision of the Court of Claims (Lack, J.), dated September 29, 2006, and (2) a judgment of the same court, dated October 27, 2006, which, after a nonjury trial on the issue of liability, and upon the decision, dismissed the claim.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

 The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident “upon the theory that ‘certain occurrences contain within themselves a sufficient basis for an inference of negligence’ ” (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200, quoting Foltis, Inc. v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455;  see Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 818 N.Y.S.2d 792, 851 N.E.2d 1143;  Scott v. First Stop, 3 A.D.3d 528, 770 N.Y.S.2d 733).   When the doctrine is applicable, it creates a prima facie case of negligence sufficient to submit the case to the fact finder, who may, but is not required to, draw a permissible inference (see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 495, 655 N.Y.S.2d 844, 678 N.E.2d 456;  Crockett v. Mid-City Mgt. Corp., 27 A.D.3d 611, 812 N.Y.S.2d 600, lv. denied 9 N.Y.3d 805, 842 N.Y.S.2d 781, 874 N.E.2d 748;  Imhotep v. State of New York, 298 A.D.2d 558, 750 N.Y.S.2d 87).   To invoke the doctrine, “(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;  (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;  [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 430, 280 N.Y.S.2d 385, 227 N.E.2d 304;  see Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 818 N.Y.S.2d 792, 851 N.E.2d 1143;  Kambat v. St. Francis Hosp., 89 N.Y.2d at 495, 655 N.Y.S.2d 844, 678 N.E.2d 456).

 The trial court properly concluded that the doctrine of res ipsa loquitur is not applicable to this case because the claimant failed to establish the element of exclusive control.   The evidence presented at trial indicates that the claimant was injured when a wheel became detached from a rolling hospital tray table, causing it to tilt and spill a cup of hot coffee on her.   The tray table was located in a hospital room to which many patients and visitors had access, and the claimant failed to demonstrate that the State had control “of sufficient exclusivity to fairly rule out the chance that the [alleged defect] was caused by some agency other than defendant's negligence” (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d at 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200;  see Dulgov v. City of New York, 33 A.D.3d 584, 822 N.Y.S.2d 298;  Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 537, 814 N.Y.S.2d 695;  Scott v. First Stop, 3 A.D.3d 528, 770 N.Y.S.2d 733;  Thompson v. Pizza Hut of Am., 262 A.D.2d 302, 691 N.Y.S.2d 99;  Raimondi v. New York Racing Assn., 213 A.D.2d 708, 624 N.Y.S.2d 273).   Absent the permissive inference of negligence which may be drawn when the doctrine of res ipsa loquitur applies, the claimant failed to establish a prima facie case.