Opinion
10811 10811A Index 303246/11
06-18-2020
Alberto GALUE, Plaintiff–Appellant, v. INDEPENDENCE 270 MADISON LLC, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Manzanet–Daniels, J.P., Gesmer, Oing, Moulton, Gonza´lez, JJ.
Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for Independence 270 Madison LLC, 270 Madison Avenue Associates LLC, and ABS Partners Real Estate LLC, respondents.
Koster, Brady & Nagler LLP, New York (William J. Volonte of counsel), for J. Spaccarelli Construction Co., Inc., respondent.
Judgments, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered December 21, 2016, upon a jury verdict in defendants' favor, dismissing the complaint, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a new trial on the issue of liability consistent with this decision. Plaintiff commenced a personal injury action after his head was allegedly hit by a towel dispenser/trash receptacle unit (TD/TR unit) installed by defendant Spaccarelli Construction Co., Inc. The TD/TR unit fell out of a bathroom wall in a building owned by defendant Independent 270 Madison LLC and 270 Madison Ave Assocs LLC and operated by defendant ABS Partners Real Estate LLC.
Contrary to plaintiff's argument, the prior decisions of this Court and supreme court on the parties' motions for summary judgment (see Galue v. Independence 270 Madison LLC, 119 A.D.3d 403, 988 N.Y.S.2d 483 [1st Dept. 2014], modfg 2013 WL 6711534 [Sup Ct, Bronx County, Aug. 13, 2013, index No. 303246/11] ) did not constitute law of the case so as to require the trial court to charge the jury on res ipsa loquitur; rather, charging the jury on that doctrine was dependent upon the proof adduced at trial (see Elsawi v. Saratoga Springs City Sch. Dist., 141 A.D.3d 921, 923, 36 N.Y.S.3d 278 [3d Dept. 2016] ).
Based upon that proof, we find that the trial court improvidently exercised its discretion in declining to charge the jury on res ipsa loquitur. A res ipsa charge "merely permits the jury to infer negligence from the circumstances of the occurrence" ( Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 495, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997] ). The doctrine does not require "sole physical access to the instrumentality causing the injury" ( Banca Di Roma v. Mutual of Am. Life Ins. Co., Inc., 17 A.D.3d 119, 121, 793 N.Y.S.2d 341 [1st Dept. 2005] ; see Sangiovanni v. Koloski, 31 A.D.3d 422, 423, 817 N.Y.S.2d 636 [2d Dept. 2006] ; Johnson v. Farr, 268 A.D.2d 560, 702 N.Y.S.2d 839 [2d Dept. 2000], lv denied 95 N.Y.2d 754, 711 N.Y.S.2d 156, 733 N.E.2d 228 [2000] ). The trial court should also have charged that a violation of Administrative Code of the City of New York § 28–301.1, which requires property owners to maintain their buildings in a safe condition, constitutes "some evidence of negligence" (see McGowan v. Kennedy & Co., 158 A.D.2d 420, 421, 552 N.Y.S.2d 1 [1st Dept. 1990] ). To the extent that the TD/TR unit allegedly fell out of the wall eight months after installation by defendant John Spaccarelli, the court erred by failing to allow plaintiff to fully question the credentials of Mr. Spaccarelli and his qualifications as an expert ( McLamb v. Metropolitan Suburban Bus Auth., 139 A.D.2d 572, 527 N.Y.S.2d 73 [2d Dept. 1988], citing Felt v. Olson, 51 N.Y.2d 977, 435 N.Y.S.2d 708, 416 N.E.2d 1043 [1980] ).
In view of the foregoing, we need not reach defendants' argument concerning the denial of their motions for a directed verdict at the close of plaintiff's case (see generally CPLR 5501(a)(1) ; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ). We have considered plaintiff's remaining contentions and find them unavailing.