Rosemond Barney-Yeboah, Respondent,v.Metro-North Commuter Railroad, Appellant.BriefN.Y.March 27, 2015To 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 20333 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 TABLE OF AUTHORITIES................................................................... ii PRELIMINARY STATEMENT ........................................................... 1 QUESTIONS PRESENTED................................................................... 2 ARGUMENT POINT I........................................................................................ 11 The Lower Court Erred In Failing To Grant Summary Judgment To Plaintiff Where Metro-North Failed to Rebut An “Inescapable Inference Of Negligence” Under The Doctrine Of Res Ipsa Loquitur CONCLUSION..................................................................................... 17 PRINTING SPECIFICATIONS STATEMENT .................................. 18 PRE-ARGUMENT STATEMENT ....................................................... 19 -i- TABLE OF AUTHORITIES Cases: Cebula v. Bonime 92 A.D.2d 856, 459 N.Y.S.2d 847 (2nd Dept. 1983)..........................12 Dermatossian v. New York City Transit Authority 67 N.Y.2d 219, 226, 492 N.E.2d 1200, 501 N.Y.S.2d 784 (1986)...11 Dillenberger v. 74 Fifth Av. Owner’s Corp., 155 A.D.2d 327 1st Dept. 1989)........................................................13 George Foltis, Inc. v. City of New York 287 NY 108, 38 N.E.2d 455 (1941).................................................11 Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566 (4th Dept. 1999)....................15 Horowitz v. Kevah Konner, Inc., 67 A.D.2d 28 (1st Dept. 1979).........................................................13 Lynch v. Gregor Madison Avenue 1/7/2003 N.Y.L.J. 20 (col. 2) New York County...........................13 Mejia v. New York City Transit Auth., 291 A.D.2d 225, 737 N.Y.S.2d 350 (1st Dept. 2002).....................14 Morejon v. Rais Constr. Corp., 7 N.Y.3d 203, 209 (2006)................................................... 9, 11, 12 Nesbit v. New York City Transit Auth., 170 A.D. 2d 92...........................................................................9, 15 Notice v. Regent Hotel Corp., 76 A.D.2d 820 (1st Dept. 1980)......................................................13 -ii- Smith v. Moore 224 A.D.2d 246 (3rd Dept. 1996)....................................................13 Thomas v. New York University Medical Center 283 A.D.2d 316, 725 N.Y.S.2d 35 (1st Dept. 2001).......................13 -iii- Preliminary Statement This brief is 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 plaintiff’s 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 at bar where summary judgment was warranted because “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.”1 Plaintiff-appellant submits that reversal is warranted and summary judgment should be granted in plaintiff’s favor on the issue of liability. 1 Morejon v. Rais Construction Company, 7 N.Y.3d 203, 851 N.E.2d 1143, 818 N.Y.S.2d 792 (2006) 1 Questions Presented 1. Did the lower court err in failing to grant partial summary judgment on liability in favor of the plaintiff where the Metro North defendants failed to rebut the “inescapable inference of negligence” under the doctrine of res ipsa loquitur? 2. Did the lower court err in failing to grant partial summary judgment on liability in favor of the plaintiff where her sworn testimony and the sworn testimony of both eyewitnesses established that plaintiff was sitting on a Metro North train, simply going to work, when a “huge” hanging panel suddenly and unexpectedly struck her in the head, and where the defendants were unable to proffer any explanation for the happening of the accident? 3. Did the lower court err in failing to grant partial summary judgment on liability in favor of the plaintiff where all the elements of res ipsa loquitur were established and the lower court held that: (a) “train car ceiling panels with multiple safety mechanisms do not generally fall on passengers in the absence of negligence...”; (b) “...the occurrence was not due to any voluntary action or contribution on the part of Barney-Yeboah [the plaintiff]...”; and ( c) proof was adduced that Metro North has sufficient control of the ceiling panel that fell on the plaintiff “so that the doctrine should be applied in determining 2 whether Metro North is liable... [since]... it seems unlikely that a passenger would tamper with them in view of passengers to undo the panel’s multiple safety mechanisms.” (RA 13) ? Is it respectfully submitted that, based upon the evidence adduced and controlling law, the above questions must be answered in the affirmation. 3 Statement Of Facts This action was brought to recover damages for severe injuries sustained by the plaintiff, Rosemond Barney-Yeboah (hereinafter referred to as “plaintiff” or “appellant”) in an accident that occurred on July 13, 2009 at approximately 6:25 a.m., while the plaintiff was a seated passenger on Metro-North train 814, car number 6353, on the Hudson line between the Cortland and Harmon stations, Westchester County, State of New York. (The Metro-North defendants are hereinafter referred to as “Metro-North”, “defendants” or “respondents”) As the plaintiff was seated, a ceiling panel unexpectedly and suddenly swung open and struck her in the head. (See, Initial Report of Incident, Metro-North Three Man Inspection Report, and M.T.A. Police Department incident. (RA 30-34) The Deposition Testimony The plaintiff was deposed twice. The first time, at the 50-H hearing held on January 11, 2010, the plaintiff appeared and testified as follows: She was involved in an incident on July 13, 2009 at approximately 6:20 a.m. on the Metro-North train. She was seated on the train when she heard a sound, a loud sound, and after all the sound all she saw was that she was on her knees with people all around her yelling. After the commotion she looked up and saw a hanging panel, a cabinet utility door that had hit her in the head. (RA 109-113, 122) 4 At her examination before trial conducted on January 19, 2011, plaintiff again described how the accident occurred: “ I was sitting on the train going to work and I felt something hit me on my head.” The object that struck her was a huge hanging panel. (RA 170, 171, 172) Two non party witnesses who both were passengers in the same car as plaintiff on the date and time of the incident, provided sworn testimony. Robert J. Burke testified that before the accident, he saw plaintiff on the platform waiting for the train, then he saw her when he sat down in the same car . She was seated in front of him, on the right-hand side in the other aisle. (RA 230-232) At some point between the Cortland and Harmon Stations, he saw a ceiling panel pop loose and come down on its hinge. He saw a ceiling panel that was between a clusters of seats, that kind of face each other at the end of the car. The panel was on a piano hinge, a long continuous hinge that allows the panel to swing down. The panel popped loose, came down on it’s hinge, swung inwards away from the door of the car, and in the process, struck the seated plaintiff in the head. (RA 235, 236) He did not see any passengers doing anything to the panel before the accident. (RA 239) He noticed that panel squeaking and vibrating just prior to the occurrence. (RA 245, 246) after the panel fell, he noticed that the middle bolts were missing and the two front bolts were still in the panel but “kind of dropped down” and were “obviously loosened”. (RA 249) 5 The second witness, Julia Alava, provided similar testimony. She witnessed the plaintiff’s accident. (RA 309) Just prior to the happening of the accident, she was sitting and talking to the plaintiff. She was putting on lipstick, and suddenly she saw something fall and she heard a noise. She saw that it was the panel that fell from the ceiling of the train and it hit plaintiff directly on the head. (RA 314, 315) It was the first panel that was at the entrance. After the accident, she noticed that one of the screws were loose. The panel didn’t fall completely, it opened up, it flipped. Days before, prior to the date of the accident, she had observed “in similar panels, the same loose screws . . .”. (RA 316-318) The above sworn testimony establishes that plaintiff was sitting on a train, simply going to work, when a “huge” hanging panel suddenly and unexpectedly struck her in the head. There is no question the plaintiff had no part in her accident, other than being an innocent victim, and this was not disputed by the Metro North defendants. The lower court confirmed: “...the occurrence was not due to any voluntary action or contribution on the part of Barney-Yeboah. Metro-North does not dispute that Barney-Yeboah did not contribute to this accident.” ( RA 13) Metro-North’s general foreman, Jack Curtiss, was deposed and testified that the ceiling panel that fell on plaintiff is used to access evaporators, the heating element, and ventilitation ducts (RA 368). They are fastened with quarter turn screws 6 (four per panel), two safety latches, and a safety chain (RA 369). To lower the panel, one would have to loosen the screws, then reach under each side of the panel and depress the safety latches (RA 373-384). There is also a safety chain that which hooks into the inside of the car ceiling to the panel to ensure the panel doesn’t swing all the way down (RA 375, 376) The safety catches are maintained by sheet metal workers employed by Metro-North (RA 382). Panels are inspected every 184 days (RA 384). Employees of Metro-North do the inspections (RA 387). The panel can’t fall down without loosening the screws and releasing the safety latches (RA 388). He cannot explain how a ceiling panel could completely fall down. He had never seen that happen. That would be a situation where the screws, safety latches and the safety chain would have to fail, simultaneously. To his knowledge, nobody but Metro-North employees accesses these panels. They are accessed at a Metro-North facility for cleaning and inspections (RA 389-391). To do the cleaning, they would have to loosen the screws and disengage the safety latch (RA 392). He had never heard of a safety chain failing (RA 393). If one safety latch fails, the other would hold the panel in place. In order for a panel to fall out releasing the safety chains manually, both safety catches would have to fail. He doesn’t know how that could happen (RA 397). If he did an interior inspection of a train, which he learned how to do in training, he would consider a screw loose on a panel an unsafe condition. (RA 398, 399). He 7 doesn’t believe all of the safety devices can fail at once. He can’t explain it. (RA 418, 419). The above testimony by Metro-North’s general foreman establishes that the ceiling panel that struck the plaintiff in the head was within the exclusive control of the defendants and their employees, and that the incident that occurred could not have happened without negligence. The lower court correctly stated: “Here, the first and third elements [of res ipsa loquitur] are clearly established since train car ceiling panels with multiple safety mechanisms do not generally fall on passengers in the absence of negligence and the occurrence was not due to any voluntary action or contribution on the part of Barney-Yeboah. Metro North does not dispute that Barney-Yeboah did not contribute to the accident.” The court further opined: “With regard to the second element of res ipsa loquitur, 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) Thus, the lower court agreed that regardless of why the panel fell, whether it was a failure in cleaning or maintenance or some other reason, that all the safety devices would not have simultaneously failed and the panel swing down and strike the 8 plaintiff’s head, in the absence of negligence. The foreman’s testimony that he doesn’t know how such an event could happen and that he “can’t explain it” only underscores Metro North’s negligence and liability here and the fitting application of res ipsa loquitur and summary judgment. Basis for summary judgment was stated because all elements of res ipsa were met: (1) the accident that occurred is of a type that does not occur in the absence of negligence; (2) the accident was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) The accident was not due to any voluntary action or contribution on the part of the plaintiff. Although the lower court agreed that all three elements were met, it declined to grant summary judgment to plaintiff on the issue of liability, holding that: “...summary judgment as to liability based on res ipsa loquitur is not warranted....the application of res ipsa loquitur may only provide the basis for granting summary judgment in favor of a plaintiff “in the rarest of ...cases...when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.” Morejon v. Rais Constr. Corp., 7 N.Y.3d 203, 209 (2006).” “The court finds that under this standard summary judgment is not warranted as while the jury may find that Metro North has exclusive control of the panel and infer that the panel would not have fallen in the absence of negligence, the circumstances here do not compel a finding as a matter of law. See, 9 Nesbit v. New York City Transit Auth., 170 A.D.2d 92.” (RA 14) The lower court erred in failing to grant summary judgment in plaintiff’s favor where Metro-North failed to rebut the “inescapable inference” of negligence under res ipsa loquitur (because their general foreman testified that he doesn’t know how the panel became loose and he can’t explain it), and where, to allow the jury to deliberate, would result in a verdict based upon speculation. This appeal ensued. 10 ARGUMENT Point I The Lower Court Erred In Failing To Grant Summary Judgment To Plaintiff Where Metro-North Failed To Rebut An “Inescapable Inference Of Negligence” Under The Doctrine Of Res Ipsa Loquitur Ordinarily, the doctrine of res ipsa loquitur creates a prima facie case of negligence sufficient for submission to a jury, and the jury may, but is not required to, draw the permissible inference. (Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 226, 492 N.E.2d 1200, 501 N.Y.S.2d 784 (1986) Nonetheless, res ipsa loquitur can serve as a basis for granting a plaintiff summary judgment “...where “the prima facie proof is so convincing that the inference of negligence arising therefore is inescapable if not rebutted by other evidence”. George Foltis, Inc. v. City of New York, 287 NY 108, 38 N.E.2d 455 (1941) Likewise, in Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 851 N.E.2d 1143 (2006), the Court of Appeals held that res ipsa can serve as a basis for granting a plaintiff summary judgment “in the exceptional case in which no facts are left for determination”. Summary judgment is particularly appropriate at bar as Metro- North has utterly failed to rebut the inference so that to allow the case to go the jury would be to invite the jury to speculate. In order to find for Metro- North, a jury would have to find that the plaintiff somehow 11 contributed, from her seat on the moving train, to the panel unhinging and striking her, that a panel could unhinge and fall without negligence, or that an unidentified third party could have, without reason, loosened the screws and disabled the other safety devices while plaintiff and the other passengers were sitting on the train. Notably, although Metro- North’s attorney speculates as to why the panel fell, Metro-North’s general foreman, Jack Curtis, merely said that he didn’t know why the panel fell and couldn’t explain what caused the panel to fall. As Metro-North failed to submit even a scintilla of evidence to rebut the inescapable inference, summary judgment was warranted in plaintiff’s favor. See, Cebula v. Bonime, 92 A.D.2d 856, 459 N.Y.S.2d 847 (2nd Dept. 1983), where the Appellate Court reversed the lower court’s denial of summary judgment based on res ipsa loquitur in a wrongful death action. The Court held: “The plaintiff’s proof, unrebutted by the defendants, is so convincing that the inference of negligence arising therefrom is inescapable [citations omitted]...If the defendants were in possession of any evidence to rebut the inference, they were duty bound to present it in opposition to the plaintiff’s motion [citations omitted].” The same result that occurred in Cebula should occur here because Metro-North failed to submit any evidence whatsoever to rebut the inference of its negligence for the happening of the subject accident and to create an issue of material fact. “[T]o submit the issue [of res ipsa loquitur to a jury on that state of the record would merely invite 12 the jury to base its verdict on speculation.” Notice v. Regent Hotel Corp., 76 A.D.2d 820 (1st Dept. 1980) Summary judgment has been granted to plaintiff on the basis of res ipsa loquitur in a long of line of cases including: Lynch v. Gregor Madison Avenue, 1/7/2003 N.Y.L.J. 20 (col. 2), New York County [citing George Foltis, Inc. v. City of New York, supra.], where the plaintiff was hit in the back of the neck and shoulder by a steel rod that was welded to a hoist door; Smith v. Moore, 224 A.D.2d 246 (3rd Dept. 1996), where the plaintiff’s car was hit by a flying truck bed cap from defendant’s car; Dillenberger v. 74 Fifth Ave. Owner’s Corp., 155 A.D.2d 327 (1st Dept. 1989), where the plaintiff was injured by a burst pipe; Notice v. Regent Hotel Corp., supra., where the plaintiff was injured by a freight elevator operated and maintained by the defendant hotel; Horowitz v. Kevah Konner, Inc., 67 A.D.2d 28 (1st Dept. 1979), where the plaintiff passenger was injured when a chartered bus driven in imprudent speed turned over in the snow; and Thomas v. New York University Medical Center, 283 A.D.2d 316, 725 N.Y.S.2d 35 (1st Dept. 2001), where the plaintiff/patient was granted summary judgment against the hospital because “it can hardly be debated that anesthetized patients do not fall from operating tables in the absence of negligence.” There are no conceivable set of facts more convincing, nor defendants’ 13 response weaker than in the case at bar. The three prong test for res ipsa loquitur enumerated by the Court of Appeals has been satisfied: (1) the accident is of a type that normally does not occur in the absence of negligence; (2) the accident was caused by an instrumentality within the exclusive control of the defendant; and (3) the accident was not due to any contributory negligence on the part of the plaintiff. See, Morejon v. Rais Construction Company, supra.; see also Mejia v. New York City Transit Auth., 291 A.D.2d 225, 737 N.Y.S.2d 350 (1st Dept. 2002) The evidence adduced establishes, and the lower court agreed, that all three prongs have been met here as (1) ceiling panels do not fall absent negligence; (2) Metro-North had exclusive control of the panel; and (3) the plaintiff was not comparative negligence as she was merely sitting on the train when the panel swung down and struck her in the head. Here, the lower court held that all three prongs were satisfied “since train car ceiling panels with multiple safety mechanisms do not generally fall on passengers in the absence of negligence and the occurrence was not due to any voluntary action or contribution on the part of Barney-Yeboah. Metro- North does not dispute that Barney-Yeboah did not contribute to the accident.” (RA 13) Regarding the issue of exclusive control, the lower court stated: “...it appears from the record that Metro- North may have had sufficient control of the instrumentality, in this case, the ceiling panel which caused the accident, so that the doctrine should 14 be applied in determining whether Metro-North is liable...even if the panels were accessible from ground level [which they were not], it seems unlikely that a passenger would tamper with them in view of passengers to undo the panels multiple safety mechanisms (See, Nesbit v. New York City Transit Authority, 170 A.D.2d 92, 96 (1st Dept. 1991) (holding that trial court erred in setting aside jury verdict in favor of plaintiff who was injured by a bar and chain that fell from defendant’s overhead train on the ground that the exclusive control criterion had not been met, writing that “[i]t is most difficult to accept the hypothesis that a person on a moving train had the tools or inclination to stand between moving cars to force apart the chain, in view of the other passengers while the train was on this journey.)” (RA 13, 14) Although here, the lower court agreed that all three elements of res ipsa loquitur were met, it declined to grant summary judgment to plaintiff. Under very similar circumstances, in Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566 (4th Dept. 1999), the plaintiff was granted summary judgment on the basis of res ipsa loquitur where the bar upon which merchandise was attached, detached from the wall and struck her. The same result should occur here where a a ceiling panel fell on the plaintiff’s head as she sat in a Metro-North train. Evidence was adduced in support of the motion consisting of the plaintiff’s testimony, the testimony of two disinterested non-party witnesses, and several documents generated 15 by the defendant that confirm it. The defendant’s only defense to the motion has been that they don’t know how it happened, but that no one but Metro-North personnel accessed these panels. The safety mechanisms would have had to fail, which apparently they did. Metro- North’s general foreman, Jack Curtis testified that a single loose screw would have been an unsafe condition - here there were as many as four loose screws, as well as two failed safety latches and a failed safety chain. While summary judgment is rarely granted in a res ipsa loquitur case, it is particularly appropriate in the case at bar 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, Foltis, supra.) Thus, summary judgment should have been granted in plaintiff’s favor and reversal is warranted. 16 Conclusion F or 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 January 23, 2014 17 Respectfully submitted, Ellen Buchholz, Esq. PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to §600.10(d)(v) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Word Count: 3556 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 3556. Dated: January 23, 2014 For the Firm: Ellen Buchholz, Esq. LAW OFFICES OF BUTTAFUOCO & ASSOCIATES, PLLC. Attorneys for Plaintiff-Appellant ROSEMOND BARNEY-YEBOAH 144 Woodbury Road Woodbury, NY 11797 (516) 746-8100 -iv- Pre-Argument Statement dated February 6, 2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------J( ROSEMOND BARNEY -YEBOAH, Plaintiff, -against- CIVIL PRE-ARGUMENT STATEMENT New York County Supreme Court Index No. 1033454/10 METRO NORTH COMMUTER RAILROAD d/b/a MTA METRO-NORTH COMMUTER RAILROAD (METRO NORTH), Defendant( s). ----------------------------------------------------------------------J( Appeal taken from: County: Justice: Date of Entry of Order: Index Number: Notice of Appeal Filed: FULL NAME OF PARTIES: Plaintiff-Appellant: Defendants-Respondents: NAMES OF COUNSEL: Supreme Court of the State of New York New York Hon. Joan A. Madden January 10, 2013 1033454110 February 6, 2013 Rosemond Barney-Y eboah Metro North Commuter Railroad d/b/a MTA Metro-North Commuter Railroad (METRO NORTH) Jason M. Murphy, Esq. Ellen Buchholz, Esq. BUTTAFUOCO & ASSOCIATES, PLLC Attorneys for Plaintiff-Appellant ROSEMOND BARNEY -YEBOAH 144 Woodbury Road Woodbury, NY 11797 (516) 746-8100 Seth 1. Cummins, Esq. GENERAL COUNSEL Attorney for Defendants-Respondents METRO-NORTH COMMUTER RAILROAD 347 Madison Avenue, 19th Floor New York, New York 10017 (212) 340-2538 BRIEF DESCRIPTION OF NATURE OF CAUSE OF ACTION OR SPECIAL PROCEEDING The instant action was commenced by plaintiff officer for damages arising from bodily she sustained as the result ofan accident that occurred on July 13,2009, at approximately 6:25 a.m. At that time, plaintiff was a lawfully seated passenger on a Metro-North train when a ceiling panel suddenly swung open and struck her in the head. STATE BRIEFLY THE RESULT BELOW: The plaintiff moved for swnmary judgment on the issue of liability on the basis of the theory of res ipsa loquitur. In support of the motion, plaintiff submitted her deposition testimony as well as the testimony of two fellow passengers on the train, who witnessed the accident. Specifically, the first witness testified that he observed the ceiling panel "pop loose, c[ 0 ]me down on its hinge" and swing inward, striking plaintiff in the head. The second witness testified that she "suddenly" saw something fall, saw that it was a panel from the ceiling, and "it hit directly on Rosemond's head." Plaintiff also submitted deposition testimony ofMetro-North's general foreman, who testified that the panels are inspected on a regular basis for maintenance every 184 days and a Calendar Day Maintenance Inspection every twenty four hours. Despite this testimony, Metro- North argued that the ceiling panel was publicly accessible and that plaintiff could not establish that Metro-North did not have exclusive control in order to establish res ipsa. The court below denied plaintiff's summary judgment motion, finding that res ipsa was not compelled as a matter of law, even though the jury may make the permissible inference that res ipsa is applicable. The decision of the Court below contravenes the facts and controlling case law and must be reversed. STATE WHETHER ANY RELATED ACTION OR PROCEEDING IS NOW PENDING IN ANY COURT IN THIS OR ANY OTHER JURISDICTION AND, IF SO, THE STATUS THEREOF: No related action or proceeding is pending. STATE BRlEFL Y THE GROUNDS FOR SEEKING REVERSAL, ANNULMENT OR MODIFICATION: The lower court erred in denying summary judgment to plaintiff on the grounds of res ipsa loquitur where: (a) the ceiling panel falling on plaintiff's head was exactly the type of occurrence that does not occur in the absence of negligence; (b )the panel that struck plaintiff was in the exclusive control of the defendants; and (c) the happening of the accident was not due to any voluntary action or contribution of the plaintiff, who was a lawful passenger sitting on defendants' train. The lower court erred in finding that summary judgment as to liability based on res ipsa was not warranted in light of the above testimony of the witnesses and defendants general foreman, which established defendants liability as a matter of law. ISSUES PROPOSED TO BE RAISED ON APPEAL: The issue to be raised on appeal will be the error of the court below, in denying summary judgment to the plaintiff on the issue of liability and pursuant to the doctrine of res ipsa loquitur. A IT ACH A COPY OF THE OPINION, IF ANY, OR IF APPLICABLE A SHORT FORM ORDER WHICH CONTAINS A MEMORANDUM. STATE WHETHER THERE IS ANY ADDITIONAL APPEAL PENDING IN THE SAME ACTION. IF SO, PROVIDE DATE OF ENTRY OF THE ORDER OR JUDGMENT. A IT ACH A COPY OF THE NOTICE OF APPEAL AND THE PRE- ARGUMENT STATEMENT. A copy of the subject Order with Notice of is attached. No other appeal is pending in the within action. Dated: Woodbury, New York February 6, 2013 BUTTAFUOCO & ASSOCIATES, PLLC. By: ~S>SL.R ~ Ellen Buchholz, E~ Attorneys for the Plaintiff-Appellant