Opinion
2002-09474.
Decided January 20, 2004.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated September 9, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.
Silberstein, Awad Miklos, P.C., Garden City, N.Y. (Joseph P. Awad and Paul N. Nadler of counsel), for appellant.
Torino Bernstein, P.C., Mineola, N.Y. (Christine M. Capitolo and Bruce Torino of counsel), for respondent.
Before: ROBERT W. SCHMIDT and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
On May 23, 1999, at approximately 1:00 P.M., the plaintiff's decedent entered a public restroom inside the defendant's premises. When she pushed the lever of a paper towel dispenser, the front plastic cover of the paper towel dispenser "flopped open," striking her in the face.
The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to establish that it neither created nor had actual or constructive notice of the alleged dangerous condition ( see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969; Gordon v. American Museum of Natural History, 67 N.Y.2d 836; Abrams v. Powerhouse Gym Merrick, 284 A.D.2d 487; Katsoris v. Waldbaum, Inc., 241 A.D.2d 511, 512; Kraemer v. K-Mart Corp., 226 A.D.2d 590). In opposition, the plaintiffs failed to raise a triable issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).
Moreover, contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is not applicable to this case. The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident "upon the theory that `certain occurrences contain within themselves a sufficient basis for an inference of negligence'" ( Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, quoting Foltis, Inc. v. City of New York, 287 N.Y. 108, 116). To invoke the doctrine, a plaintiff must demonstrate the following elements:
"(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"
( Corcoran v. Banner Super Market, 19 N.Y.2d 425, 430, quoting Prosser, Torts § 39, at 218 [3d ed]; see Dermatossian v. New York City Tr. Auth., supra at 226). Here, the plaintiffs failed to establish that the defendant had exclusive control over the paper towel dispenser, located within a public restroom, which the defendant never locked. The paper towel dispenser was continuously available to the public, and the plaintiff failed to demonstrate that the defendant had control "of sufficient exclusivity to fairly rule out the chance that the [alleged defect] was caused by some agency other than defendant's negligence" ( Dermatossian v. New York City Tr. Auth., supra at 228; see Fernandez v. Ramos, 300 A.D.2d 348; Ruggiero v. Waldbaums Supermarkets, 242 A.D.2d 268, 269).
SANTUCCI, J.P., KRAUSMAN, SCHMIDT and RIVERA, JJ., concur.