Diovisalvo v. Woodlawn Cemetery, Inc.

Appellate Division of the Supreme Court of New York

Diovisalvo v. Woodlawn Cemetery, Inc.

241 A.D.2d 348, 659 N.Y.S.2d 286, 1997 N.Y. App. Div. LEXIS 7158

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

DecidedJuly 3, 1997

StatusPublished

Cited by1 cases

This text of 241 A.D.2d 348 (Diovisalvo v. Woodlawn Cemetery, Inc.) 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

Diovisalvo v. Woodlawn Cemetery, Inc., 241 A.D.2d 348, 659 N.Y.S.2d 286, 1997 N.Y. App. Div. LEXIS 7158 (N.Y. Ct. App. 1997).

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Opinion

Judgment, Supreme Court, Bronx County (Hansel McGee, J., and a jury), entered January 24, 1996, awarding plaintiff $616,209.87, inclusive of interest and costs, against defendant, unanimously affirmed, with costs.

Res ipsa loquitur was properly charged upon proof establishing that the 100-pound marble cover of the crypt in which plaintiffs brother was interred pending final burial spontane[349]*349ously dislodged and fell, striking plaintiff in the face. No expert testimony was needed for the jury to conclude that the sudden dislodging of a crypt cover would not happen without someone’s negligence (cf., Kambat v St. Francis Hosp., 89 NY2d 489, 496-497). Defendant’s exclusive control was established by the proof that the crypt in question was in a mausoleum used by defendant for temporary interment, that the crypt covers were routinely taken off, and put back on, only by defendant’s employees, and that the knobs that operated the locking mechanism were very difficult to turn, often requiring defendant’s employees to use a special instrument to do so, and making it unlikely that a member of the public could have compromised the fastness of the crypt cover (cf., Ebanks v New York City Tr. Auth., 70 NY2d 621). Nor was there any evidence permitting an inference that the event occurred due to any voluntary action or contribution by plaintiff. We are unpersuaded by defendant’s claim of surprise by the introduction of res ipsa into the case since the complaint did allude to the “common law doctrine of res ipsa loquitur” in addition to alleging negligent installation and maintenance. In any event, even if res ipsa had not been pleaded, allowing plaintiff, at the close of her case, to amend her pleading to conform to her proof of res ipsa, could not have prejudiced defendant, and was an appropriate exercise of discretion under CPLR 3025 (c). We have considered defendant’s remaining claims and find them to be without merit. Concur—Milonas, J. P., Nardelli, Williams, Mazzarelli and Andrias, JJ.

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Judgment, Supreme Court, Bronx County (Hansel McGee, J., and a jury), entered January 24, 1996, awarding plaintiff $616,209.87, inclusive of interest and costs, against defendant, unanimously affirmed, with costs.

Res ipsa loquitur was properly charged upon proof establishing that the 100-pound marble cover of the crypt in which plaintiffs brother was interred pending final burial spontane[349]*349ously dislodged and fell, striking plaintiff in the face. No expert testimony was needed for the jury to conclude that the sudden dislodging of a crypt cover would not happen without someone’s negligence (cf., Kambat v St. Francis Hosp., 89 NY2d 489, 496-497). Defendant’s exclusive control was established by the proof that the crypt in question was in a mausoleum used by defendant for temporary interment, that the crypt covers were routinely taken off, and put back on, only by defendant’s employees, and that the knobs that operated the locking mechanism were very difficult to turn, often requiring defendant’s employees to use a special instrument to do so, and making it unlikely that a member of the public could have compromised the fastness of the crypt cover (cf., Ebanks v New York City Tr. Auth., 70 NY2d 621). Nor was there any evidence permitting an inference that the event occurred due to any voluntary action or contribution by plaintiff. We are unpersuaded by defendant’s claim of surprise by the introduction of res ipsa into the case since the complaint did allude to the “common law doctrine of res ipsa loquitur” in addition to alleging negligent installation and maintenance. In any event, even if res ipsa had not been pleaded, allowing plaintiff, at the close of her case, to amend her pleading to conform to her proof of res ipsa, could not have prejudiced defendant, and was an appropriate exercise of discretion under CPLR 3025 (c). We have considered defendant’s remaining claims and find them to be without merit. Concur—Milonas, J. P., Nardelli, Williams, Mazzarelli and Andrias, JJ.

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Bluebook (online)

241 A.D.2d 348, 659 N.Y.S.2d 286, 1997 N.Y. App. Div. LEXIS 7158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diovisalvo-v-woodlawn-cemetery-inc-nyappdiv-1997.

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