Thursday, February 18, 2016

Res ipsa, and summary judgment denied.

Practice point:  The Appellate Division affirmed denial of defendant's summary judgment motion in this action for damages after plaintiff allegedly was injured by a falling picture frame as she was entering a room inside office space leased by defendant.

Plaintiff pled that defendant was liable under a theory of common-law negligence and the doctrine of res ipsa loquitur.  Defendant failed to make the requisite showing of its entitlement to judgment as a matter of law, as the evidence submitted in support of the motion failed to establish, prima facie, that defendant lacked exclusive control over the picture frame.  Defendant also failed to establish that it was entitled to summary judgment on the ground that the picture frame, as it was positioned on the date of the accident, did not constitute a dangerous condition, or that defendant did not create a dangerous condition.

Student note:  As defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to plaintiff to raise a triable issue of fact.

Case: Assil v. Camba, Inc., NY Slip Op 00914 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Resolving a fact issue on a motion for a preliminary injunction.