CAPOLONGO v. GIANT CARPET (2002)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated November 28, 2000, as denied their motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

While shopping at the defendant's carpet store, the plaintiff Pauline Capolongo was injured when a 12-foot x 15-foot carpet and the metal beam from which it was hanging fell down upon her.   The plaintiffs sought summary judgment on the issue of liability based upon the doctrine of res ipsa loquitur.

Summary judgment was properly denied.   Without deciding whether the doctrine of res ipsa loquitur is applicable in this case, we note that the doctrine is a rule of evidence which merely provides a permissible inference of negligence rather than a presumption (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;  Vaynberg v. Provident Operating Corp., 269 A.D.2d 442, 703 N.Y.S.2d 208;  Feuer v. HASC Summer Program, 247 A.D.2d 429, 668 N.Y.S.2d 700).   Therefore, application of the doctrine as a basis for awarding summary judgment is inappropriate (see, Vaynberg v Provident Operating Corp., supra;  Davis v. Federated Dept. Stores, 227 A.D.2d 514, 642 N.Y.S.2d 707).