Fiorella v Town of Huntington

[*1] Fiorella v Town of Huntington 2009 NY Slip Op 50692(U) [23 Misc 3d 1110(A)] Decided on March 26, 2009 District Court Of Suffolk County, Third District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 16, 2009; it will not be published in the printed Official Reports.

Decided on March 26, 2009
District Court of Suffolk County, Third District

Albert J. Fiorella, Plaintiff,

against

Town of Huntington, Defendant.



HUSC 497-08



Appearances: Albert J. Fiorella, Esq.

Attorney for Plaintiff, Pro Se

320 Old Country Road

Garden City, New York 11530

Patricia T. Grant Flynn

Assistant Town Attorney

Attorney for the Defendant

100 Main Street

Huntington, New York 11743

C. Stephen Hackeling, J.

Please take notice that after a review of the testimony and evidence submitted and deliberating thereon, it is undisputed that the defendant Town was repaving the road in front of the plaintiff's house on July 15, 2007 and that the plaintiff left his house for 15-30 minutes and returned to see his mailbox damaged. The plaintiff, an attorney and officer of the Court, testified that he made several calls to the Town, complaining of the damage and that employees of the defendant came to inspect same. They advised him the mailbox was too damaged to be repaired.

The defendant Town does not controvert the plaintiff's testimony but simply avers that it has no documentation in its records concerning the matter other than the plaintiff's timely filed notice of claim. Under normal circumstances, the failure of the plaintiff to introduce direct eyewitness testimony, an admission of liability or compelling circumstantial evidence, would prohibit him from making a prima facie showing of defendant's negligence. However, in this instance, the happening of the accident permits, but does not compel, the court to draw an inference that the defendant was negligent. The doctrine of res ipsa loquitur is a form of circumstantial evidence providing a permissive inference of negligence. In the absence of rebuttal by the defendant (as here), the application of the doctrine may serve as a basis for an award of judgment to the plaintiff, where "plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" [*2]Morejon v. Rais Constr. Co., 7 NY3d 203 (NY 2006).

To invoke the doctrine of res ipsa loquitur, it must be shown that: the instrumentality which caused the accident was in the exclusive control of the defendant agency or municipality. [FN1] The event must be of a kind which ordinarily does not occur in the absence of someone's negligence and the event must not have been due to any voluntary action or contribution on the part of the plaintiff. In such an instance, the fact finder is permitted to draw an inference of negligence against the municipal party controlling the instrumentality. See generally, Martinez v. City of New York, 292 AD2d 349 (NY AD2d Dep't. 2002).

New York municipalities have the power, and the obligation to close public highways to prevent accidents while repair work is underway. New York Jurisprudence, Second Edition 2009, 65 NY Jur. 2d Highways, Streets, Bridges §437; citing to Majka v. Haskell , 301 NY 206 (NY 1950). During this time period, all activity upon the public road is under the direct control of the municipality. In the case at bar, the Town exercised its sovereign power to close the road for repaving. All vehicles or other instrumentalities which traversed the closed road on July 15, 2007 were therefore under the Town's agent's control. Plaintiff's testimony excluded the possibility that the plaintiff himself caused or contributed to the damage. The running over or running down of a mailbox is the kind of event that ordinarily does not occur in the absence of someone's negligence. As such, res ipsa loquitur treatment is appropriate, allowing the court to draw an inference of negligence on the town's part.

Absent any evidence by the defendant rebutting the inference of its negligence, the Court finds by a preponderance of the evidence that the town paving crew negligently damaged the plaintiff's mailbox and awards judgment for the value of the mailbox in the sum of $553.91, plus interest from the complaint date and costs. [*3]

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J.D.C. Footnotes

Footnote 1:"The requirement of exclusive control is not rigid. It implies control by the defendant of such kind that the probability that the accident was caused by someone else is so remote that it is fair to permit an inference that the defendant was negligent". New York Patter Jury Instructions-Civil, 2:65 Res Ipsa Loquitur.