Opinion
2014-06-10
Heyda SOTO, Plaintiff–Appellant, v. NEW FRONTIERS 2 HOPE HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants–Respondents.
The Law Office of Thomas J. Lavin, P.C., Bronx (Damien Rodriguez of counsel), for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for respondents.
The Law Office of Thomas J. Lavin, P.C., Bronx (Damien Rodriguez of counsel), for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for respondents.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 16, 2013, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this action for personal injuries allegedly sustained by plaintiff, a postal worker, when the mailbox receptacle unit in defendants' building fell into the wall as she was closing the unit after placing the mail in the individual mail boxes, the motion court properly granted defendants' motion for summary judgment. Defendantssustained their initial burden of demonstrating that they did not cause, create or have actual or constructive notice of a defect in the mailbox receptacle unit, that the defect was not visible or apparent, and that a reasonable inspection would not have revealed that the box was loose ( see Giaccio v. 179 Tenants Corp., 45 A.D.3d 454, 455, 845 N.Y.S.2d 328 [1st Dept.2007] ).
Contrary to plaintiff's argument, the doctrine of res ipsa loquitur is inapplicable because defendants did not have exclusive access to the mailbox receptacle unit. It is undisputed that only postal employees, like plaintiff, were given a key ( see Cohen v. Interlaken Owners, 275 A.D.2d 235, 237, 712 N.Y.S.2d 513 [1st Dept.2000] ).