Pena v. Seacrest Construction Corp.

Appellate Division of the Supreme Court of New York

Pena v. Seacrest Construction Corp.

275 A.D.2d 737, 713 N.Y.S.2d 494, 2000 N.Y. App. Div. LEXIS 9272

Appellate Division of the Supreme Court of the State of New York·Decided September 18, 2000·Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Taylor, J.), dated August 4, 1999, which, upon granting the motion of the defendant LIPCO Electrical Corp. pursuant to CPLR 4401 at the close of the plaintiffs’ case to dismiss the complaint, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The trial court properly refused to submit this case to the jury based upon the doctrine of res ipsa loquitur. The plaintiffs failed to establish that the event was of a kind that ordinarily does not occur in the absence of someone’s negligence and that it was not caused by any voluntary action or contribution on the part of the injured plaintiff (see, Ebanks v New York City Tr. Auth., 70 NY2d 621; Braithwaite v Equitable Life Assur. Socy., 232 AD2d 352; Murphy v Waldbaum, Inc., 228 AD2d 156; Cacciolo v Port Auth., 186 AD2d 528). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Taylor, J.), dated August 4, 1999, which, upon granting the motion of the defendant LIPCO Electrical Corp. pursuant to CPLR 4401 at the close of the plaintiffs’ case to dismiss the complaint, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The trial court properly refused to submit this case to the jury based upon the doctrine of res ipsa loquitur. The plaintiffs failed to establish that the event was of a kind that ordinarily does not occur in the absence of someone’s negligence and that it was not caused by any voluntary action or contribution on the part of the injured plaintiff (see, Ebanks v New York City Tr. Auth., 70 NY2d 621; Braithwaite v Equitable Life Assur. Socy., 232 AD2d 352; Murphy v Waldbaum, Inc., 228 AD2d 156; Cacciolo v Port Auth., 186 AD2d 528). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.

Pena v. Seacrest Construction Corp., 275 A.D.2d 737, 713 N.Y.S.2d 494, 2000 N.Y. App. Div. LEXIS 9272 (N.Y. Ct. App. 2000).

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