Smith v. Moore

• Decision Date: 16 May 1996
• Citation: 227 A.D.2d 854,642 N.Y.S.2d 393
• Parties: Cynthia S. SMITH, Formerly Known as Cynthia S. Smithson, Respondent, v. Theodora P. MOORE, as Administrator of the Estate of Leslie J. Strobeck, Sr., Deceased, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 393

642 N.Y.S.2d 393

227 A.D.2d 854

Cynthia S. SMITH, Formerly Known as Cynthia S. Smithson, Respondent, v. Theodora P. MOORE, as Administrator of the Estate of Leslie J. Strobeck, Sr., Deceased, Appellant.

Supreme Court, Appellate Division Third Department.

May 16, 1996.

Felt, Hubbard, Borrow & Hallak (Christine Sabino Kiesel, of counsel), Clinton, for appellant.

John Scarzafava (Elizabeth E. Little, of counsel), Oneonta, for respondent.

Before CARDONA, P.J., and CREW, WHITE, CASEY and PETERS, JJ.

CARDONA, Presiding Justice.

Appeal from an order of the Supreme Court (Ingraham, J.), entered June 22, 1995 in Otsego County, which, inter alia, granted plaintiff's cross motion for summary judgment on the issue of liability.

On March 31, 1993, plaintiff was driving her motor vehicle west on State Route 7 in the Town of Otego, Otsego County, and at the same time a truck owned and driven by Leslie J. Strobeck, Sr. was headed east in the opposite lane. The cap covering the truckbed of Strobeck's vehicle flew off and struck plaintiff's car, allegedly causing serious injuries to plaintiff. Plaintiff commenced this action against Strobeck, who has died, and is now represented by the administrator of his estate. After discovery, both sides moved for summary judgment. Supreme Court awarded partial summary judgment to plaintiff on the issue of liability on the ground of res ipsa loquitur. Defendant appeals.

We affirm. The theory of res ipsa loquitur applies where a plaintiff shows that (1) the event does not usually occur in the absence of negligence, (2) the instrumentality that caused the event was within the exclusive control of the defendant, and (3) the plaintiff did not contribute to the cause of the accident (see, Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200; Ladd v Hudson Val. Ambulance Service, 142 A.D.2d 17, 20-21, 534 N.Y.S.2d 816). It is true that negligence cases do not usually lend themselves to summary judgment (see, Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324) and, in general, the doctrine of res ipsa loquitur merely gives rise to a permissible inference of negligence and does not justify summary judgment (see, George Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455; Notice v. Regent Hotel Corp., 76 A.D.2d 820, 429 N.Y.S.2d 437). However, even in negligence cases, summary judgment must be granted where the plaintiff's prima facie proof is so convincing that the inference of negligence is inescapable if not rebutted by other evidence (see, Horowitz v. Kevah Konner, Inc., 67 A.D.2d 38, 414 N.Y.S.2d 540). Summary judgment has been granted in certain res ipsa loquitur cases where the defendant has totally failed to rebut the inescapable inference of negligence (see, e.g., id.).

In the present case, there is no dispute that the cap that hit plaintiff's vehicle came from Strobeck's truck which Strobeck was driving at the time of the incident and there was no evidence that anyone but Strobeck maintained the vehicle. Plaintiff submitted an affidavit of Andrew Timmerman, who sells, installs and services caps and who opined that caps should be frequently inspected and that a visual inspection would indicate whether any of the affixing units were loose. Timmerman further stated that a cap would not inadvertently come...