Opinion
CV-1782-19/KI
04-07-2021
PHOENIX SUTTON STR. INC., Plaintiff, v. Patrick RIZZOTTI; the New York Times Company, MD S. Ahmed; and Mostly Sunny Hacking Corp., Defendants.
Donald A. Pitofsky, Esq., Sabaj Law, P.C., 121A Nassau Avenue, Brooklyn, NY 11222, (212) 518-8270, Counsel for Plaintiff. Ian McAvoy, Esq., Law Office of James J. Toomey, P.O. Box 2903, Hartford, CT 06104-2903, (917) 778-6600, Counsel for Defendants Patrick Rizzotti and The New York Times Company. Christopher Nahas, Esq., Baker, McEvoy & Moskovitz, P.C., One Metro Tech Center, 8th Floor, Brooklyn, NY 11201, (212) 857-8230, Counsel for Defendants MD S Ahmed and Mostly Sunny Hacking Corp.
Donald A. Pitofsky, Esq., Sabaj Law, P.C., 121A Nassau Avenue, Brooklyn, NY 11222, (212) 518-8270, Counsel for Plaintiff.
Ian McAvoy, Esq., Law Office of James J. Toomey, P.O. Box 2903, Hartford, CT 06104-2903, (917) 778-6600, Counsel for Defendants Patrick Rizzotti and The New York Times Company.
Christopher Nahas, Esq., Baker, McEvoy & Moskovitz, P.C., One Metro Tech Center, 8th Floor, Brooklyn, NY 11201, (212) 857-8230, Counsel for Defendants MD S Ahmed and Mostly Sunny Hacking Corp.
DECISION AND ORDER
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4
CROSS-MOTION/AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6
REPLY/OPPOSITION TO CROSS-MOTION & EXH. ANNEXED 7-8
LETTER BRIEF IN SUPPORT OF MOTION 9
SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION 10
INTRODUCTION
Plaintiff moves This Honorable Court by Notice of Motion for Partial Summary Judgement on the issue of Liability pursuant to CPLR 3212 and for such other and further relief deemed just and proper. For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgement on issue of Liability predicated on the Doctrine of Res Ipsa Loquitur is hereby GRANTED ; Trial to proceed on issue of Liability as amongst All Defendants and Plaintiff's Damages.
PROCEDURAL AND FACTUAL HISTORY
This property damage action in negligence commenced by Plaintiff resulting from Motor Vehicle Accident (MVA) involving collision of Defendants’ motor vehicles. On March 7, 2018 at or about 2:20AM, truck operated by Defendant Rizzotti and owned by Defendant The New York Times Company and sedan operated by Defendant Ahmed and owned by Defendant Mostly Sunny Hacking Corp. collided at the intersection of Broadway and Prince Street, County of New York, New York. Police Accident Report (MV-104) states,
"AT TPO DRIVER OF VEHICLE 1 [Rizzotti] STATES THAT HE WAS TRAVELING EB ON PRINCE STREET WITH THE GREEN LIGHT WHEN DRIVER OF VEHICLE 2 [Ahmed] BLEW THE RED LIGHT CAUSING A COLLISSION. DRIVER OF VEHICLE 1 COMPLAINED OF LOWER BACK AND KNEE PAIN AND WAS REMOVED TO BELLEVUE HOSPITAL BY EMS. DRIVER OF VEHICLE 2 STATES THAT HE WAS TRAVELING SB ON BROADWAY AND HAD A YELLOW LIGHT AT THE INTERSECTION WHEN COLLISION OCCURRED, UPON FURTHER INVESTIGATION DRIVER OF VEHICLE 2 ADMITTED THAT THE LIGHT WAS RED. DRIVER OF VEHICLE 2 WAS SEEN BY EMS AND RMA'D AT THE SCENE."
Plaintiff alleges that Defendants’ collision caused damage to its scaffolding and shed erected for a work project positioned on the sidewalk at or near 565 Broadway, New York County, New York.
Summons and Complaint filed by Plaintiff on January 18, 2019, issue joined by Defendants Rizzotti and The New York Times Company (hereinafter, NY Times) on February 25, 2019 and by Defendants Ahmed and Mostly Sunny Hacking Corp. (hereinafter, MSHC) on March 25, 2019. Defendants filed an initial Motion to Compel on July 11, 2019 which was settled on September 17, 2019 but refiled for non-compliance on December 13, 2019, which was Denied No Appearance Either Side on the return date of January 13, 2020. This instant motion by Plaintiff for Partial Summary Judgment on Liability was originally filed on November 30, 2020 and refiled February 25, 2021. In the interim, Defendants Rizzotti and NY Times filed cross-motion for Summary Judgement on December 18, 2020 arguing they bear no liability based upon Co-Defendant Ahmed's admission against interest that he breached the red light, as reported in police report. After oral argument held on March 8, 2021, This Court held this statement as hearsay and failure of completed document discovery and examinations before trials rendered cross-motion premature and therefore it was denied. Plaintiff's Motion for Summary Judgement was adjourned to March 23, 2021 for Briefs by all parties on the application of the Doctrine of Res Ipsa Loquitur to the case at Bar. Plaintiff and Defendants Rizzotti and NY Times filed opposing Briefs, whereas Defendants Ahmed and MSHC did not. After oral argument held, Decision reserved.
DISCUSSION
In this instant matter, Plaintiff moves by notice of motion to establish that as a matter of law, the admissible evidence tendered within the motion papers make out a prima facie entitlement to partial summary judgment on issue of liability predicated on the Doctrine of Res Ipsa loquitur, pursuant to CPLR 3212 (e) which provides for "Partial Summary Judgement" for which the standard of proof is set forth by CPLR 3212 (b), which states:
"Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion."
It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact ( Sillman v Twentieth Centurv-Fox Film Corp. , 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ; Alvarez v Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact ( Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 ; see also Giuffrida v Citibank , 00 NY2d 72 [2003]). I must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers ( Di Menna & Sons v City of New York , 301 N.Y. 118, 92 N.E.2d 918 [Ct App 1950] ). Where the court finds an existence of such an issue or where the issue may be so deemed "arguable" requires denial of summary judgment ( Braun v Carey , 280 App Div 1019, 116 N.Y.S.2d 857 [3d Dept 1952] ; Barrett v Jacobs , 255 N.Y. 520, 522, 175 N.E. 275 [Ct App 1931] ). "Issue-finding, rather than issue-determination, is the key to the procedure" for the court ( Esteve v Avad , 271 App Div 725, 727, 68 N.Y.S.2d 322 [1st Dept 1947] ; Gravenhorst v Zimmerman , 236 N.Y. 22, 38-39, 139 N.E. 766 [Ct App 1923] ). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility ( S.J. Capelin Assoc. v Globe Mfg. Corp. , 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion ( Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404-05, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied ( Moskowitz v Garlock , 23 A.D.2d 943, 259 N.Y.S.2d 1003 [3d Dept 1965] ).
When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party and inferences that may be drawn therefrom must be accepted as true ( Dykeman v Heht , 52 A.D.3d 767, 769, 861 NYS 2d 732 [2d Dept 2008] ; see Pearson v Dix McBride , 63 A.D.3d 895, 883, 883 N.Y.S.2d 53 [2nd Dept 2009] ; Robinson v Strong Mem. Hosp. , 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983] ). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court's directing judgement in movant's favor as a matter of law notwithstanding sufficiency of opposition or lack thereof ( Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [Ct App 1985] ). Once movant's burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible evidence, the existence of a material factual issue in dispute requiring a factfinder's determination at trial (see Friends of Animals v Associated Fur Mfrs. , 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 [Ct App 1979] ; see also Alvarez v Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [Ct App 1986] ; Zuckerman v Citv of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [Ct App1980] ). Opposition must "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse" for failure to so do ( id. at 560, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Pride Acquisitions LLC v. Benson, 2012 NY Misc. LEXIS 5839, 2012 WL 6760335, 2012 N.Y. Slip Op. 33065 [U] [Sup. Ct. 2012] ). Conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law cannot be relied upon. Nor may opposition papers to rebut rely upon general overbroad allegations or mere immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial ( Fileccia v Massapequa Gen. Hosp., 63 N.Y.2d 639, 479 N.Y.S.2d 520, 468 N.E.2d 702 [Ct App 1984]; Bustamonte v Koval, 98 A.D.[2d 739, 469 N.Y.S.2d 441 2d Dept 1983] ; Pan v Coburn , 95 A.D.2d 670, 463 N.Y.S.2d 223 [1st Dept 1983] ; Himber v Pfizer Labs., 82 A.D.2d 776, 440 N.Y.S.2d 649 [1st Dept 1981] ; Baldwin v Gretz , 65 A.D.2d 876, 410 N.Y.S.2d 394 [3d Dept 1978] ; Century Ctr. Ltd. v Davis, 100 A.D.2d 564, 473 N.Y.S.2d 492 [2d Dept 1984] ). Thus, where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation or credibility then this issue of fact must be determined by the factfinder either by judge or jury precluding summary judgement ( Moskowitz v Garlock , 23 A.D.2d 943, 259 NYS 2d 1003 [3d Dept 1965] ).
DOCTRINE OF RES IPSA LOQUITUR
Here, this motion for summary judgement is premised on the rarely applied Doctrine of Res Ipsa Loquitur. "Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique" ( Morejon v. Rais Constr. Co. , 7 N.Y.3d 203, 207, 851 N.E.2d 1143, 1145, 818 N.Y.S 2d 792, 794, 2006 N.Y. LEXIS 1256, 2006 WL 1222689, 2006 N.Y. Slip Op. 03619, 3 [Ct. App. 2006] ). The Latin term's literal translation, "the thing speaks for itself" is such that it is so apparently obvious by the very basic use of the five human biological senses — touch — hear — see - taste - smell. Res Ipsa loquitur (colloquially referred to as res ipsa) is a maxim based in logical common sense and the human experience. By use of those five basic senses, it is common sense that the happening of the "thing"- injury/damage - could not have been caused but by some sort of wrongdoing or intervening negligence by a defendant tortfeasor "in some unspecified way" ( Kambat v St. Francis Hosp. , 89 N.Y.2d 489, 678 N.E.2d 456, 655 N.Y.S.2d 844 [1997] ). Common law negligence has been well established from the Kings Bench as: duty owed, duty breached, proximate causation to injury or damage. Ordinarily In the first instance, it is plaintiff's burden to prove by a preponderance of admissible evidence its prima facie case of negligence against defendant, thereby shifting burden to defendant to rebut liability in negligence by its preponderance of admissible evidence. Similarly, established from the Kings Bench, although rarely invoked is the common law Doctrine of Res Ipsa Loquitur because of the most unexpected rarefied circumstances of the happening of the "thing" ( Mullen v St. John , 57 N.Y. 567, 570, 1874 NY LEXIS 317, 1874 WL 11221, citing Kearney v London, etc., R. R. Co. [L. R. [5 Q. B.], 411; S. C. in the Exchequer Chamber, L. R. [6 Q. B.], 759 [A. D. 1870, 1871]] [res ipsa invoked in personal injury negligence action from falling brick from three-year old London bridge's pilaster]). It was not until 1874 that the literal term, Res Ipsa Loquitur was first used by the New York Court of Appeals in Mullen , a case of first impression (id. ). Theoretically, Res Ipsa is established through Plaintiff's admissible evidence of such obviously undeniably logical common sense and human experience, that the happening of the "thing"- injury/damage could not have been proximately caused but for the negligence of someone or someones, defendant tortfeasor or defendant tortfeasors. Res Ipsa is neither subjective nor arbitrary, but rather an objective "common-sense appraisal of the probative value of circumstantial evidence" ( George Foltis, Inc. v New York , 287 N.Y. 108, 115, 38 N.E.2d 455, 459-460, 1941 NY LEXIS 1396, 153 A.L.R. 1122 [Ct App 1941] ). It is a matter of basic common sense and common knowledge that the human body is not expected to contain a surgical sponge within its corpus. Therefore, where a surgical sponge, a foreign entity, appears in a corpus’ cavity after surgery, then its very presence is the "thing" or injury which speaks for itself as a presumption or inference of negligence against defendant(s). However, Court of Appeals summarily rejected Res Ipsa as a presumption of negligence, but rather held it a permissive but not a mandatory inference of negligence premised on circumstantial evidence proffered by movant plaintiff (id. ). Plaintiff's circumstantial evidence proffered must at least show "probability that a particular accident could not have occurred without legal wrong by the defendant" ( id. at 115, 38 N.E.2d 455, 459-460 ). Res Ipsa Loquitur therefore relieves the plaintiff of its prima facie burden by inference of negligence against the defendant by virtue of the happening of the "thing"-injury/damage that could not have occurred but for defendant's negligence in some undefined way, shape or form. Plaintiff is not tasked with presenting, explaining nor defining the manner of defendant(s)’ negligence merely that the obvious happening of "the thing" could not have occurred but for defendant(s)’ negligence.
Although the term Res Ipsa Loquitur first used literally for the first time, Mullen cited previously considered case in which tenet of res ipsa was considered and applied (Edgerton v New York & H. R. Co., 39 N.Y. 227, 228, 1868 NY LEXIS 147, 1868 WL 6258 [Ct App 1868] [prima facie case of negligence jury charge applied against railroad company for personal injury upheld by NY Court of Appeals]).
It is not merely plaintiff that may move for res ipsa inference by circumstantial evidence, defendant or co-defendant may also avail itself of res ipsa prayer for relief (see Coakley v Regal Cinemas, Inc. , 188 A.D.3d 796, 798-799, 134 NYS 3d 74, 78, 2020 NY App Div LEXIS 6705, 2020 N.Y. Slip Op. 06490, 103 U.C.C. Rep. Serv. 2d [Callaghan] 336, 2020 WL 6603142 [2d Dept 2020] ).
In sum and substance, Res Ipsa Loquitur bestows upon plaintiff imprimatur of satisfaction of its prima facie burden, thereby shifting the burden to the defendant to rebut inference of negligence against it. The jury's Res ipsa loquitur charge at trial "merely permits the jury to infer negligence from the circumstances of the occurrence" ( Galue v. Independence 270 Madison LLC , 184 A.D.3d 479, 480, 127 NYS 3d 1, 2, 2020 NY App Div LEXIS 3544, 2020 WL 3272801, 2020 N.Y. Slip Op. 03463, 1, citing Kambat v St. Francis Hosp. , 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456, v495, 89 N.Y.2d 489, 678 N.E.2d 456, 655 NYS 2d 844 [1997] ). Although Res Ipsa jury charge allows jury to infer defendant's negligence, jury is not required to do so ( Dilligard v City of New York, 170 A.D.3d at 956 ; see Morejon v Rais Constr. Co. , 7 N.Y.3d 203, 209, 851 N.E.2d 1143, 818 NYS 2d 792 ; see also Marinaro v Reynolds, 152 A.D.3d 659, 661, 59 NYS 3d 87 [2d Dept 2017] ). The three prong test for the application of Res Ipsa Loquitur is as follows:"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff" ( Corcoran v Banner Super Market, Inc. , 19 N.Y.2d 425, 430, 227 N.E.2d 304, 305, 280 NYS 2d 385, 387, 1967 NY LEXIS 1836, citing Prosser, Torts § 39 at 218 [3d ed 1964]). The second and third prongs of the res ipsa test have not generally been the cause of undue deliberation nor dispute once established by Plaintiff. Particularly of note, "courts do not generally apply the requirement of exclusive control as it is literally stated or as a fixed, mechanical or rigid rule" ( Zhigue v. Lexington Landmark Props. , LLC, 183 A.D.3d 854, 856, 2020 NY App Div LEXIS 3045, 2020 WL 2545024, 2020 N.Y. Slip Op. 02948, 1-2, 124 NYS 3d 391, citing Dermatossian v New York City Tr. Auth. , 67 N.Y.2d 219, 226, 492 N.E.2d 1200, 501 NYS 2d 784 [Ct App 1986] ). On the contrary, prong number one is more so prone to the most zealous arduous disputation (M. Richard Wynne, The Doctrine of Res Ipsa Loquitur in New York , 11 St. John's Law Review 280 [1937]).
Even more so rare, is motion for summary judgement predicated on Res Ipsa Loquitur, which accounts for the dearth of precedential case law. It was more than a century after the Mullen case before the Court of Appeals decisively rejected the principle that "res ipsa loquitur may never serve as a basis for granting a plaintiff summary judgment" ( Morejon v. Rais Constr. Co. , 7 N.Y.3d 203, 207, 851 N.E.2d 1143, 1145, 818 NYS 2d 792, 794, 2006 NY LEXIS 1256, 2006 WL 1222689, 2006 N.Y. Slip Op. 03619, 3 [Ct App 2006] ; see Mullen v. St. John , 57 N.Y. 567, 570, 1874 NY LEXIS 317, 1874 WL 11221 [Ct App 1874] ). Morejon reinforced the three-prong res ipsa test or criteria that had been applied at trials, however circumscribing its application to a "rare event" ( Morejon v Rais Constr. Co. at 206, 851 N.E.2d 1143, 1145, 818 NYS 2d 792, 794 ). "[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict" ( id. at 209, 851 N.E.2d 1143, 1145, 818 NYS 2d 792, 794 ). "That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (id. ). Of particular note, Morejon uses the term "circumstantial evidence" as an interchangeable synonym for "res ipsa" ( id. at 206, 851 N.E.2d 1143, 1145, 818 NYS 2d 792, 794 ). Such that, Res ipsa considered as "nothing more than a brand of circumstantial evidence" ( id. at 211, 851 N.E.2d 1143, 1145, 818 NYS 2d 792, 794 ).
"Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant's liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination."
(id. at 212, citing Kambat v St. Francis Hosp. , 89 N.Y.2d 489, 678 N.E.2d 456, 655 N.Y.S.2d 844 [Ct App 1997] ); see Corcoran v Banner Super Mkt. (19 N.Y.2d 425, 227 N.E.2d 304, 280 N.Y.S.2d 385 [Ct App 1967] ). Consistent with any summary judgement analysis, the existence of a mere scintilla of a material triable issue of fact is the crux of the res ipsa motion for summary judgement, issue finding rather than issue determination. Movant's facts must be so persuasive and convincing that the common sense happening of the "thing" — injury/damage is such that it could not have occurred but by proximate causation by non-movant(s)’ negligence, even though undefined. Opposing party must proffer a strong, not weak material triable issue of fact to rebut movant's inference of negligence in order to defeat res ipsa motion for summary judgement. Successfully doing so shall result in the case proceeding to trial. Failure to do so results in movant—plaintiff's grant of partial summary judgement on issue of liability to proceed to trial on damages. Whereas a movant-defendant's grant of summary judgement dismisses causes of action against it as in recently decided Coakley (Coakley v Regal Cinemas, Inc., 188 A.D.3d 796, 798-799 [2d Dept 2020] ). Co-defendant manufacturer/distributer granted motion for summary judgment in Coakley "dismissing so much of the cause of action alleging negligence as was based on the doctrine of res ipsa loquitur insofar as asserted against it" ( id. at 799 ).
In the case at bar, Defendants Rizzotti and Ahmed operated vehicles which collided in motor vehicle accident which damaged Plaintiff's scaffolding/shed erected on the sidewalk. Plaintiff's scaffolding/shed is a stationary immovable structure, not located in the roadway where vehicles are expected to traverse, but rather on the sidewalk where structures such as Plaintiff's scaffolding/shed are expected to be found. As the result of this collision, Defendants Rizzotti and NY Times’ vehicle left the roadway, traversed the sidewalk, where motor vehicles are prohibited from doing so, then propelled into Plaintiff's scaffolding/shed on the sidewalk causing its damage. Clearly, the event or the happening of the "thing" that speaks for itself, to wit, Defendant Ahmed colliding with Defendant Rizzotti, propelling Defendant Rizzotti's vehicle into Plaintiff's scaffolding/shed on the sidewalk could not have occurred in the absence of Defendants’ negligence satisfying res ipsa prong one; the event or the happening of the "thing" was caused by instrumentalities, to wit, Defendants’ vehicles, within the exclusive control of Defendants satisfying res ipsa prong two; Plaintiff's stationary scaffold/shed damage was not due to any voluntary action nor contribution by Plaintiff thereby satisfying res ipsa prong three. Defendants Rizzotti and NY Times strains common sense credulity as it is argued that Plaintiff's circumstantial evidence fails res ipsa prongs one and two. Clearly, as to res ipsa prong one in the exercise of common sense based upon human experience, there is no ordinary circumstance under which in the exercise of the sense of sight that it can be expected that Defendants’ vehicle would leave roadway, traverse upon sidewalk (where motor vehicles are ordinarily not to traverse) and propel into Plaintiff's stationary immoveable scaffold/shed (an obvious inanimate fixed structure, devoid of mobility and unable to move out of the way to avoid being struck by propelled Defendants’ vehicle), which irrefutably could not have been caused in the absence of Defendants’ negligence in some way shape or form. Quite similarly as to prong one, Defendants Rizzotti and NY Times’ argument as to res ipsa prong two further defies logic and is inconsistent with their implicit concession of prong three, that the damage to the scaffold/shed must not have been due to any voluntary action nor contribution by Plaintiff. Defendants’ respective vehicles are the relevant instrumentalities which are obviously under the exclusive control of Defendants and Plaintiff could not in any way shape or form contributed to the harm inflicted by Defendants. Here of note, it was made clear in its previous Decision and Order denying Defendants Rizzotti and NY Times’ cross motion for summary judgement, that This Court makes no determination as to liability amongst Defendants. Although Defendants Ahmed and MSHC opted against supplemental opposition to Plaintiff's res ipsa prayer for relief, Defendants Rizzotti and NY Times’ argument that since there are multiple defendants, it is against the interest of justice to impart culpability on every defendant, is unpersuasive, particularly considering recent Coakley case ( Coakley v Regal Cinemas, Inc., 188 A.D.3d 796, 798-799 [2d Dept 2020] [held, co-defendant's res ipsa motion for summary judgement granted dismissal of causes of actions against it and trial on liability to proceed with remaining co-defendants]). Similarly, in this instant matter, where Plaintiff found to have satisfied its burden for the grant of res ipsa partial summary judgement on liability as a matter of law, does not foreclose nor preclude this case proceeding to trial on liability amongst Defendants. Res ipsa partial summary judgement for liability granted to Plaintiff as a matter of law is of no moment to trial on liability as against these multiple Defendants , here. Thus, Plaintiff's circumstantial evidentiary proof is so convincing, whereas Defendants Ahmed and MSHC's silence on res ipsa prayer for relief as well as Defendants Rizzotti and NY Times’ logic defying rebuttal so weak, that the res ipsa inference of Defendants’ negligence is inescapable.
It is opined, plaintiff bears heightened burden where res ipsa motion for summary judgement against a single defendant as opposed to multiple defendants. Where there are multiple defendants, issue of liability amongst those defendants remains issue of fact to the judge or jury factfinder to deliberate apportionment of liability as amongst multiple defendants. However, where there is a single defendant, greater burden placed on plaintiff in terms of prong one. Such that, indeed the event causing injury may be one that could not have occurred absent someone's negligence. But there is heightened burden upon plaintiff to provide overwhelmingly irrefutable circumstantial evidence to prove that the single defendant is indeed the sole proximate cause of injury/damage since grant of res ipsa motion for summary judgement forecloses any further factfinding on liability and trial proceeds solely on issue of plaintiff's damages.
For the foregoing reasons, Plaintiff's Motion for Partial Summary Judgement on Liability pursuant to CPLR 3212 predicated on the Doctrine of Res Ipsa Loquitur is hereby GRANTED ; Trial to proceed on Liability amongst Defendants and Plaintiff's Damages.
This constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED.