TANE v. WHIPPLE ALLEN CONSTRUCTION CO INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Terry TANE, Respondent, v. WHIPPLE-ALLEN CONSTRUCTION CO., INC., Defendant,

Chadwick Bay Hotel Corporation, d/b/a Sheraton Harborfront Inn, Appellant. CHADWICK BAY HOTEL CORPORATION, d/b/a Sheraton Harborfront Inn, Third-Party Plaintiff, v. BEKINS DISTRIBUTION SERVICES CO., Third-Party Defendant-Appellant.

CHADWICK BAY HOTEL CORPORATION, d/b/a Sheraton Harborfront Inn, Third-Party Plaintiff, v. PROFESSIONAL INSTALLERS, INC., Third-Party Defendant-Appellant.  (Appeal No. 2.)

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, HAYES, BALIO and BOEHM, JJ. Miserendino Celniker by James Schultz, Buffalo, for Plaintiff-Appellant-Respondent. Sliwa and Lane (John A. Ziegler, of counsel), Buffalo, for Third-Party Defendants-Respondents-Appellants Bekins Distribution.

 Supreme Court erred in granting plaintiff summary judgment against defendants and third-party defendants based on the doctrine of res ipsa loquitur.   Plaintiff did not move for summary judgment against third-party defendants on that ground and, more importantly, did not assert any claim against them.   In any event, the doctrine of res ipsa loquitur “merely permits the jury to infer negligence from the circumstances of the occurrence.   The jury is thus allowed-but not compelled-to draw the permissible inference” (Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 495, 655 N.Y.S.2d 844, 678 N.E.2d 456).   Consequently, the doctrine of res ipsa loquitur does not entitle a plaintiff to summary judgment.

Order unanimously reversed on the law without costs and summary judgment against defendants and third-party defendants denied.

MEMORANDUM: