Kaiser v Winner Communications, Inc.

[*1] Kaiser v Winner Communications, Inc. 2004 NY Slip Op 50809(U) Decided on July 7, 2004 Supreme Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2004
Supreme Court, Kings County

JUDY KAISER, Plaintiff,

against

WINNER COMMUNICATIONS, INC., d/b/a VILLAGE GREEN APARTMENTS, Defendants.



2290/02

Theodore T. Jones, J.

Upon the foregoing papers the defendant Winner Communications, Inc., d/b/a Village Green Apartments moves pursuant to CPLR §3212 for summary judgment. The plaintiff Judy Kaiser opposes the motion.

This action arises out of an incident on June 29, 2001. According to plaintiff [*2]Kaiser, she rented a bungalow owned by defendant. Plaintiff states that less than a day after she occupied the premises she sat on one of defendant's chairs for the first time and the chair suddenly collapsed, thereby causing her injury.

The defendant contends that he had no actual notice nor constructive notice that the subject chair was in a dangerous or defective condition and that he did not cause or create such a condition. It is well settled that in order to impose liability upon a landowner for injuries resulting from an allegedly defective condition, the plaintiff must establish that the landowner either created, or had actual or constructive notice of the defective condition (see Gordon v American Museum of Natural History, 67 NY2d 836).

The plaintiff does not contend that defendant had notice of the defective condition. In opposition to the summary judgment motion, plaintiff argues that the motion must be denied because the doctrine of res ipsa loquitur is applicable to the facts of this case. If the doctrine of res ipsa loquitur were applicable under the facts or circumstances, lack of notice would not be a bar to defendant's liability. The doctrine of res ipsa loquitur creates a prima facie case of negligence sufficient for submission to a jury, and the jury may, but is not required, to draw the permissible inference of negligence (see Kambat v St. Francis Hospital, 89 NY2d 489, 495).

In order for the doctrine of res ipsa loquitur to apply, the following three elements must exist: (1) the event must be of a kind which ordinarily does not occur in the absence of 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 of the plaintiff. (Kambat v St. Francis Hospital, 89 NY2d 489). In the instant case, the defendant argues that the doctrine of res ipsa loquitur does not apply because the event which caused the plaintiff's injury could have occurred in the absence of negligence because the plaintiff has not established that there was a latent defect. The defendant further argues the lack of "exclusive control" citing the use of the premises, a summer bungalow, by various tenants on a month to month basis and therefore the lack of exclusive control by the defendant. The plaintiff counters that the bungalow was last rented ten months prior to the plaintiff's use.

The court relies on Finocchio v Crest Hollow Club, 184 AD2d 491 to hold that the doctrine of res ipsa loquitur may be applicable in this case and available to plaintiff at trial. In Finocchio, the injury occurred when the chair in which plaintiff was seated in defendant's dining hall collapsed. The trial court refused to charge res ipsa loquitur because defendant raised the issue of exclusive control. In reversing, the Second Department held the refusal of the trial court to give the requested charge was based upon an overly rigid interpretation of the requirement of exclusive control. This does not mean that other possible causes must be altogether eliminated "but only that their likelihood must be so reduced that the greater probability lies at defendant's door" (Dermatossian v New York City Tr. Auth., supra, at 227, citing 2 Harper and James, Torts §19.7 at 1086). See Crispo v Art Student League, 180 Misc2d 54, where Justice Schneier discusses the conflicting Second Department cases. Therefore, plaintiff's reliance upon res ipsa loquitur is sufficient to warrant denial defendant's motion for summary judgment.

Accordingly, the court denies defendant's summary judgment motion.

This constitutes the decision and Order of the court. [*3]

So ordered.

E N T E R :

__________________________

Hon. Theodore T. Jones

J.S.C.