Buell v. SPS Properties

Appellate Division of the Supreme Court of New York

Buell v. SPS Properties

166 A.D.2d 925

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 5, 1990

StatusPublished

This text of 166 A.D.2d 925 (Buell v. SPS Properties) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buell v. SPS Properties, 166 A.D.2d 925 (N.Y. Ct. App. 1990).

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Opinion

Judgment unanimously affirmed with costs. Memorandum: The trial court properly submitted the case to the jury on the theory of res ipsa loquitur. The evidence establishes that the erratic operation of the elevator would not normally have occurred in the absence of improper maintenance, which the jury could have determined was within the exclusive control of defendant Otis Elevator Company (see, Rogers v Dorchester Assocs., 32 NY2d 553; Weeden v Armor Elevator Co., 97 AD2d 197). As stated in Weeden v Armor Elevator Co. (supra, at 206): " 'Exclusivity’ is a relative term, not an absolute. The logical basis for [the control] requirement is simply that it must appear that the negligence of which the thing speaks is probably that of defendant and not of another’ (2 Harper and James, op. cit., § 19.7, p 1085).” (Appeal from judgment of Supreme Court, Erie County, Sedita, J.—dismiss cross claim.) Present—Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.

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Judgment unanimously affirmed with costs. Memorandum: The trial court properly submitted the case to the jury on the theory of res ipsa loquitur. The evidence establishes that the erratic operation of the elevator would not normally have occurred in the absence of improper maintenance, which the jury could have determined was within the exclusive control of defendant Otis Elevator Company (see, Rogers v Dorchester Assocs., 32 NY2d 553; Weeden v Armor Elevator Co., 97 AD2d 197). As stated in Weeden v Armor Elevator Co. (supra, at 206): " 'Exclusivity’ is a relative term, not an absolute. The logical basis for [the control] requirement is simply that it must appear that the negligence of which the thing speaks is probably that of defendant and not of another’ (2 Harper and James, op. cit., § 19.7, p 1085).” (Appeal from judgment of Supreme Court, Erie County, Sedita, J.—dismiss cross claim.) Present—Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.

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Bluebook (online)

166 A.D.2d 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buell-v-sps-properties-nyappdiv-1990.

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