DECISION & ORDER Plaintiff’s motion seeking summary judgment on the issue of liability is denied with leave to renew following the completion of disclosure as to the facts relevant to the elements of res ipsa loquitur.On October 24, 2017, plaintiff was walking through a parking lot when he was allegedly struck by the hood of a motor vehicle that was parked in the lot. Plaintiff claimed that the hood “was blown off of the motor vehicle, became airborne, and was propelled into the air, striking the plaintiff” (complaint at 12). Defendant was the registered owner of the vehicle that lost its hood.On April 24, 2018, plaintiff commenced this action against defendant to recover damages for personal injuries he allegedly sustained as a result of the October 2017 incident. Issue was joined in June 2018.Approximately three months after issue was joined, plaintiff made the instant motion for summary judgment on the issue of defendant’s liability. Acknowledging that no disclosure had taken place in the action, plaintiff argued that, under principles of res ipsa loquitur, defendant is liable because the incident would not have occurred absent someone’s negligence, “the plaintiff did not do anything to contribute to th[e] incident by merely walking to his mother’s car which was lawfully parked in the…parking lot[, and] that[,] as the registrant of the subject motor vehicle, the defendant had exclusive control of the subject motor vehicle” (plaintiff’s affirmation in support at 13). In support of his motion, plaintiff submitted the pleadings and his two-page affidavit.Defendant submitted two affirmations in opposition to plaintiff’s motion, both of which were timely interposed. In the first affirmation, defendant offered no meaningful opposition to plaintiff’s motion, but requested that if the issue of liability is resolved against him, he be permitted to defend the action on the ground that plaintiff did not sustain a “serious injury” within the meaning of Insurance Law §5102(d) and otherwise contest plaintiff’s damages. In the second affirmation (the “amended affirmation in opposition”), defendant argued that he had recently come into possession of video footage of the incident, that the video demonstrated that plaintiff was not struck by the hood, and that plaintiff’s motion should be denied. Defendant included a CD-ROM disc containing the alleged footage. (The video shows a hood blowing off a stationary motor vehicle in a parking lot, blowing through the air several car lengths, and hitting the ground next to an unidentified individual. The hood does not appear to make contact with the individual. No evidence was offered to authenticate the video.)“Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it. Res ipsa loquitur simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence” (Kambat v. St. Francis Hosp., 89 NY2d 489, 494 [1997] [internal citations and quotation marks omitted]). Where a plaintiff establishes the following three elements, a factfinder may infer that the defendant was negligent: (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event was not due to any voluntary action or contribution on the part of the plaintiff (Morejon v. Rais Const. Co., 7 NY3d 203, 209 [2006]). Res ipsa loquitur is not a theory of liability, and it does not give rise to a presumption of liability; rather, it is “a brand of circumstantial evidence” (id. at 207-212). As a brand of circumstantial evidence, res ipsa loquitur allows (but does not compel) a factfinder to infer negligence from the happening of an event (States v. Lourdes Hosp., 100 NY2d 208, 211-212 [2003]). Thus, “only in the rarest of res ipsa loquitur cases may a plaintiff [obtain] summary judgment or a directed verdict [at trial]” (Morejon v. Rais Const. Co., 7 NY3d at 209). Such a rare case is present “ only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response is so weak that the inference of [the] defendant’s negligence is inescapable” (id.).Based on the slim motion record before the court, which record is a reflection of the pre-disclosure posture of this action, the court cannot say that this case represents one of those rare instances where summary judgment to a plaintiff is appropriate under the principles of res ipsa loquitur. Plaintiff’s evidence — the pleadings and a brief affidavit — is not so convincing that the inference (if any) of defendant’s negligence is inescapable.The court notes that it is far from obvious that the subject instrumentality (the hood of defendant’s motor vehicle) was within the exclusive control of defendant. “The exclusive control requirement of res ipsa loquitur is not an absolutely rigid concept, but [rather] is subordinate to its general purpose, that of indicating that it was probably the defendant’s negligence which caused the accident in question” (Nesbit v. New York City Transit Auth., 170 AD2d 92, 98 [1st Dept 1991] [internal quotation marks omitted]). Defendant’s motor vehicle was parked in an urban parking lot, the configuration, capacity and security features of which have not been described by the parties. Members of the public, therefore, may have had been in a position to disturb the hood (see Pavon v. Rudin, 254 AD2d 143, 146 [1st Dept 1998]). Plaintiff did not submit evidence providing “a rational basis for concluding that ‘it is more likely than not’ that the injury was caused by defendant’s negligence” (DiRoma v. Mutual of America Life Ins. Co., Inc., 17 AD3d 119, 121 [1st Dept 2005], quoting Kambat v. St. Francis Hosp., 89 NY2d at 494). Moreover, the issue of whether a defendant had sufficient control over a given instrumentality to satisfy the “exclusive control” element is typically for the factfinder (see 1A NY PJI3d 1:65, at p 420 [2019]). Thus, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of defendant’s liability and his motion is denied, regardless of the sufficiency of defendant’s opposition.1In closing, whether res ipsa loquitur principles apply in a given case (which is to say, whether that special brand of circumstantial evidence is available to a plaintiff) entails a fact-intensive inquiry (see Bonacci v. Brewster Service Station, Inc., 54 Misc 3d 437, 440 [Sup Ct, Westchester County 2016]). A fact-intensive inquiry can be undertaken by a court only if it has before it the relevant and material facts. It follows, therefore, in Morejon’s idiom, that rare is summary judgment to a plaintiff in a res ipsa loquitur case, and rarer still is pre-disclosure summary judgment to a plaintiff in such a case. Thus, although a plaintiff can move for summary judgment once issue has been joined (see CPLR 3212[a]), where the plaintiff is going to rely on res ipsa loquitur in seeking summary judgment, he or she would do well to complete disclosure as to the facts relevant to the three elements of res ipsa loquitur before making the summary judgment motion.Accordingly, it is hereby ORDERED that plaintiff’s motion is denied with leave to renew following the completion of disclosure as to the facts relevant to the elements of res ipsa loquitur.This constitutes the decision and order of the court.Date: March 15, 2019Bronx, NY
