Res Ipsa

Espinal v Trezechahn 1065 Ave. of the Ams., LLC, 2012 NY Slip Op 03083 (1st Dept., 2012)

Plaintiff's reliance on the doctrine of res ipsa loquitur is misplaced. For a case to fall within that doctrine, "(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" (Ebanks v New York City Tr. Auth., 70 NY2d 621, 623 [1987]). Although the motion court impermissibly converted plaintiff's theory of liability from a runaway elevator to a mere entrapment, as indicated there was no evidence of prior entrapments involving this particular elevator. In any event, NYE's expert's uncontroverted litany of reasons unrelated to negligence that an elevator might stop in a shaftway negates the first element of the doctrine (see Forde v Vornado Realty Trust, 89 AD3d 678, 680 [2011]).

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