Rosemond Barney-Yeboah, Respondent,v.Metro-North Commuter Railroad, Appellant.

Brief

N.Y.March 27, 2015

To Be Argued By: ELLEN BUCHHOLZ, ESQ. New York Supreme Court APPELLATE DIVISION-FIRST DEPARTMENT New York County Clerk’s Index No. 103354/10 Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601 Printed on Recycled Paper 20511 REPLY BRIEF FOR PLAINTIFF-APPELLANT ROSEMOND BARNEY-YEBOAH ROSEMOND BARNEY-YEBOAH, Plaintiff-Appellant, -against- METRO-NORTH COMMUTER RAILROAD d/b/a MTA METRO-NORTH COMMUTER RAILROAD (METRO-NORTH), Defendant-Respondent. DANIEL P. BUTTAFUOCO & ASSOCIATES, PLLC Attorneys for Plaintiff-Appellant Rosemond Barney-Yeboah 144 Woodbury Road Woodbury, New York 11797 (516) 746-8100 ebuchholz@buttafuocolaw.com On the Brief: ELLEN BUCHHOLZ, ESQ. TABLE OF CONTENTS Page PRELIMINARY STATEMENT .............................................................. 1 ARGUMENT ............................................................................................. 2 The Lower Court Erred In Failing to Grant Summary Judgment To Plaintiff Where All Three Elements of Res Ipsa Loquitur Were Met And Metro-North Failed To Submit Any Competent Evidence To Rebut The Inescapable Inference of Its Negligence CONCLUSION .......................................................................................... 6 PRINTING SPECIFICATIONS STATEMENT ........................................ 7 -1- TABLE OF AUTHORITIES Cases: Crockett v. Mid-City Management Corp., 27 A.D. 3d 611. ...... .3,4 ............................................................. .-....... (2nd .Dept. 2006) ......... 4 George Foltis, Inc. V. City ofNewYork, ....................................... 2 Horowitz v. Kevah Konner, Inc., ................................................... .3 Levin v. Mercedes-Benz Manhattan, Inc., 2014 WL 298762 ...... . (Sup. Ct. N.Y. County) ................................................................... 4 Morejonv. Rais Constr. Corp., ...................................................... 2 Notice v. Regent Hotel Corp., ....................................... · ................. 5 -11- PRELIMINARY STATEMENT This Reply Briefis respectfully submitted in support of the plaintiff-appellant's appeal from the decision and order of the Supreme Court (Hon. Joan A. Madden, J.S.C.) dated January 10, 2013, that denied plaintiffs motion for partial summary judgment against the defendants on the issue of liability based on the doctrine of res ipsa loquitur. The Supreme Court held that although res ipsa loquitur "may" provide the basis for summary judgment in "rare cases", it was not warranted at bar. (RA 6- 14) The decision and order of the Supreme Court contravenes the facts and law . where summary judgment was warranted because all the elements of res ipsa were met and the defendant failed to proffer any evidence to rebut the inference of its negligence. 1 ARGUMENT The Lower Court Erred In Failing To Grant Summary Judgment To Plaintiff Where All Three Elements Of Res Ipsa Loquitur Were Met And Metro-North Failed To Submit Any Competent Evidence To Rebut The Inescapable Inference Of Its Negligence It is settled in law that res ipsa loquitur "may" provide the basis for summary judgment in "rare cases" such as the one at bar, where the circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable if not rebutted by other evidence. George Foltis. Inc. v. City of New York, supra.; Morejon v. Rais Constr. Corp., supra. Here, the facts and evidence adduced established that all three elements of res ipsa were met so as to warrant the grant of summary jUdgment to plaintiff. The lower court agreed that all . three elements were met as it stated that the first and third elements were "clearly established" and that the second element was also established as: " ... it appears from the record that Metro-North may have had sufficient control of the instrumentality, in this case the ceiling tile, which caused the accident... In partiCUlar, even if the panels were accessible from ground level, it seems unlikely that a passenger would tamper with them in view of passengers to undo the panel's multiple safety mechanisms ... ". (RA 13) 2 Nonetheless, even though the lower court held that all three elements were met, it declined to grant summary judgment to plaintiff despite the fact that the defendant failed to submit any competent evidence whatsoever to oppose the motion, as it merely relied upon the deposition testimony of its foreman, Jack Curtiss, who stated that to his knowledge, nobody but Metro North employees access the overhead panels (RA 389-391), that he doesn't know how such an event could happen (RA 397) and that he "can't explain it". (RA 418,419) Thus, because all three elements of res ipsa were met,and because Metro North failed to submit any evidence whatsoever to rebut the "inescapable inference" of its negligence, summary judgment should have been granted to plaintiff as there were no facts triable issues offact left for determination and to allow the matter to go to the jury would invite the jury to speculate. None of the cases cited by defendant in their Respondent's Brief, contravene the basic principle that summary judgment will be granted on res ipsa in "certain .... situations where the particular defendant totally failed to rebut the inescapable inference of negligence." See, Horowitz v. Kevah Konner, Inc., supra. The question at bar, then, is whether this action "is the rare case in which a plaintiff will be entitled to judgment as a matter of law on the ground that the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence." Crockett v. Mid-City Management 3 Corp., 27 A.D.3d 611 (2nd Dept. 2006) Here, the trial court had ample basis upon which to grant plaintiff summary judgment on res ipsa, but declined to do so even though all of the elements were met, and Metro North submitted virtually no opposition to motion except for an unconvincing· denial of exclusive control of the hanging panel. This assertion, which served as the sole defense, was contradicted by Metro North's own foreman, who testified to the contrary and further, that he had no idea why the panel fell. Under similar circumstances, other trial courts have granted summary judgment to plaintiff on a res ipsa claim. For example, in a very recent lower court case, Levin v. Mercedes-Benz Manhattan. Inc., 2014 WL 298762 (Sup. Ct. N.Y. County), the New York County Supreme Court granted plaintiffs motion for summary judgment on res ipsa where the plaintiff was injured when, while standing under an open overhead garage door at the entrance to defendant's service area, the door came down without warning and struck him on the head. The lower court held thatthe plaintiff was entitled to judgment as a matter oflaw "on the ground that the prima facie proof is so convincing that the inference arising from it is inescapable." The court found that summary judgment was warranted because: (i) all three elements of res ipsa were met; (ii) "Mercedes's denial of exclusive control of the overhead door is unconvincing"; and (iii) there were no "material issues of fact in dispute". Almost the identical facts that occurred in Levin occurred here, and thus, 4 the lower court erred in denying the motion where it found that all elements of res ipsa were met; that Metro North failed to proffer any evidence to rebut the inference of its negligence; and where there were no triable issues of fact left to be submitted to the jury. "[T]o submit the issue [of res ipsa loquitur to a jury on that state of the record would merely invite the jury to base its verdict on speculation." Notice v. Regent Hotel Corp., supra. While summary judgment is rarely granted in a res ipsa -loquitur case, it is particularly appropriate here, where the plaintiff was struck by a ceiling panel which was under the exclusive control of the defendant, and "proof [of the defendants ' negligence] is so convincing that the inference of negligence arising therefore is inescapable" and is "not rebutted by other evidence" (See, F oltis, supra.) Thus, summary judgment should have been granted in plaintiff s favor and reversal is warranted. 5 Conclusion For all the foregoing reasons, the plaintiff-appellant respectfully urges this Court to issue an Order reversing that portion of the decision/order of the lower court that denied plaintiff's motion for summary judgment. Dated: Woodbury, New York March 21,2014 6 Respectfully submitted, Ellen Buchholz, Esq. PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to §600.10(d)(v) that the foregoing Reply Brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name oftypeface:Times New Roman Point size: 14 Word Count: 1 ,073 The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statues, rules, regulations, etc. is 1,0373 Dated:March 24,2014 For the Finn:Ellen Buchholz, Esq. LAW OFFICES OF BUTTAFUOCO & ASSOCIATES, PLLC. Attorneys for Plaintiff-Appellant ROSEMOND BARNEY-YEBOAH 144 Woodbury Road Woodbury, NY i 1797 (516) 746-8100