Pages Numbered Notice of Motion/Order to Show Cause/ 1 Petition/Cross Motion and Affidavits (Affirmations) Annexed Opposing Affidavits (Affirmations) 2 Reply Affidavits (Affirmations) 3 Affidavit (Affirmation) Other Papers Upon the foregoing papers, it is ORDERED that the motion by the plaintiff for summary judgment on the issue of liability and dismissing the defendant’s first affirmative defense of comparative negligence is granted. This is an action to recover damages for personal injuries allegedly sustained by the plaintiff while he was being transported to a hospital by the defendant. The plaintiff was placed in a stretcher which flipped over and fell to the ground as he was being loaded into an ambulance. Prior to discovery, the plaintiff moves for summary judgment on the issue of liability based upon the theory of res ipsa loquitur. To rely on the doctrine of res ipsa loquitur, a plaintiff must demonstrate that (1) the injury is of a kind that does not ordinarily occur in the absence of someone’s negligence, (2) the injury is caused by an agency or instrumentality within the exclusive control of the defendants and (3) the injury is not due to any voluntary action on the part of the plaintiff (see Morejon v. Rais Constr. Co., 7 NY3d 203, 209; Lau v. Ky, 63 AD3d 501; Simmons v. Neuman, 50 AD3d 666). A plaintiff need not conclusively eliminate the possibility of all other causes of the injury (see Kambat v. St. Francis Hosp., 89 NY2d 489; Lancia v. Good Samaritan Hospital, 201 AD3d 913). A plaintiff must only show that the likelihood of other possible causes of the injury is so reduced that the greater probability lies at the defendant’s door (see Kambat v. St. Francis Hosp., supra; Lancia v. Good Samaritan Hospital, supra). Here, the plaintiff submits an affidavit in which he asserts that he was strapped down in a stretcher by two employees of the defendant. As he was being loaded into an ambulance, the stretcher fell out of the ambulance and flipped over causing him to land on the ground. The plaintiff claims that he did not lean to either side or make any sudden movements before the stretcher flipped over. Contrary to the defendant’s contention, the plaintiff’s affidavit was sufficient to make a prima facie showing of his entitlement to summary judgment based on the doctrine of res ipsa loquitur (see Thomas v. New York Univ. Medical Center, 283 AD2d 316; Farina v. Pan Am. World Airlines, 116 AD2d 618; see also Ladd v. Hudson Valley Ambulance Service, 142 AD2d 17). Although summary judgment is rare in res ipsa loquitur cases, a plaintiff may be entitled to relief when the circumstantial proof is so convincing and the defendant’s response so weak that the inference of the defendant’s negligence is inescapable (see Morejon v. Rais Constr. Co., supra; Thomas v. New York Univ. Medical Center, supra; Farina v. Pan Am. World Airlines, supra). In opposition, the defendant failed to submit an affidavit or any other evidence demonstrating the existence of a triable issue of fact as to the happening of the accident. The defendant submitted only an affirmation of its attorney who lacked knowledge of the facts (see Lampkin v. Chan, 68 AD3d 727; Gomez v. Sammy’s Transp. Inc., 19 AD3d 544; Farina v. Pan Am. World Airlines, supra). Since the defendant was responsible for transporting the plaintiff, it was incumbent upon the defendant to explain its conduct (see Thomas v. New York Univ. Medical Center, supra; Farina v. Pan Am. World Airlines, supra; cf., Aponte v. City of New York, 143 AD3d 552). The defendant contends that the motion is premature because discovery has not been conducted. To defeat a motion for summary judgment based on outstanding discovery, it is incumbent upon the opposing party to provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were within the exclusive knowledge and control of the moving party (see Rodriguez v. Gutierrez, 138 AD3d 964; Cajas-Romero v. Ward, 106 AD3d 850; Boorstein v. 1261 48th Street Condominium, 96 AD3d 703). In this case, the defendant failed to make such a showing as employees of the defendant had personal knowledge of the relevant facts underlying the accident. Therefore, the purported need to conduct discovery does not warrant denial of the motion (see Lampkin v. Chan, supra; Emil Norsic & Son v. LP Transp. Inc., 30 AD3d 368; Rainford v. Han, 18 AD3d 638). Accordingly, the motion for summary judgment on the issue of liability is granted. Dated: March 21, 2022
