Guarracino v. Central Hudson Gas & Electric Corp.

274 A.D.2d 551, 712 N.Y.S.2d 389, 2000 N.Y. App. Div. LEXIS 8332

Opinions

—In an action to recover damages for personal injuries, etc., the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), entered March 9, 1999, which, upon the granting of the defendant’s motion for judgment as a matter of law made at the close of the plaintiffs case, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion for judgment as a matter of law as the plaintiff failed to establish a prima facie case of res ipsa loquitur. The plaintiff failed to demonstrate either (1) that the accident was of a kind which ordinarily does not occur in the absence of someone’s negligence, or (2) that it was caused by an instrumentality within the exclusive control of the defendant (see, Kambat v St. Francis Hosp., 89 NY2d 489; Thompson v Pizza Hut, 262 AD2d 302; Bonventre v Max, 229 AD2d 557).

The plaintiffs remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Joy and Thompson, JJ., concur.