JACKSON v. DECK 86TH STREET 2630 LLC (2022)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:

Papers NYSCEF Document No.

Motion Sequence No. 3

Notice of Motion, Affirmation in Support 61-73

Opposition 84-87

Reply 88-89

Upon oral argument held and placed on the record on November 9, 2022 and review of the foregoing papers the Defendant's motion for summary judgment, pursuant to CPLR 3212, is hereby granted only to the extent that plaintiff's claim for Res Ipsa Locquitor is hereby dismissed. Defendant's motion is denied as to plaintiff's regular cause of action for negligence.

It is well-established that “a plaintiff seeking to rely on the doctrine of res ipsa loquitor must establish the following three elements: (1) that the event was one that would not ordinarily occur in the absence of someone's negligence; (2) that the event was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) that the accident was not caused by the contributory negligence of the plaintiff.” Fernandez v. Ramos, 300 AD2d 348 (2d Dept. 2002).

A defendant does not have exclusive control over a chair, for purposes of res ipsa locquitor, where it was located in a public area available to the public for a period of time before the accident. See Brennan v. Wappingers Central School District, 164 AD3d 640 (2d Dept. 2018)(the subject chair was located in a custodian break room that was accessible to third-party contractors of the School District); Lawrence v. Rockland County Bd. Of Co-op. Educational Services, 93 AD3d 766 (2d Dept. 2012)(the involved chair that collapsed was located in a hallway outside a classroom giving numerous persons access to it); and Loiacono v. Stuyvesant Bagels, Inc., 29 AD3d 537 (2d Dept. 2006)(the involved chair was located in a bagel shop that was open to the public for six hours before the plaintiff's accident).

This constitutes the Order of the Court.

Odessa Kennedy, J.