SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1337 

CA 13-00851 

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ. 

 

MARY HERBST, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

LAKEWOOD SHORES CONDOMINIUM ASSOCIATION, 

DEFENDANT-RESPONDENT.

 

FARACI LANGE, LLP, ROCHESTER (RAUL EMILIO MARTINEZ OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

THE LAW FIRM OF JANICE M. IATI, P.C., ROCHESTER (AMANDA BURNS OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Thomas

A. Stander, J.), entered February 11, 2013 in a personal injury

action. The order denied the cross motion of plaintiff for partial

summary judgment on liability, and granted the motion of defendant for

summary judgment dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying defendant’s motion and

reinstating the complaint and as modified the order is affirmed

without costs in accordance with the following Memorandum: Plaintiff

commenced this action seeking damages for injuries she sustained when

the handrail in the stairway, which provided access from the garage to

the first floor of the building in which she lived, pulled out from

the wall, causing her to fall backward down the stairs. Plaintiff

alleges that defendant’s negligence may be inferred based upon the

doctrine of res ipsa loquitur. We note at the outset that plaintiff

improperly alleges res ipsa loquitur as a separate cause of action

(see Abbott v Page Airways, 23 NY2d 502, 512; Smith v Consolidated

Edison Co. of N.Y., Inc., 104 AD3d 428, 428-429). We therefore deem

plaintiff’s complaint, as amplified by the bill of particulars, to

state a single cause of action for negligence. 

Supreme Court properly denied plaintiff’s cross motion for

partial summary judgment on liability but erred in granting

defendant’s motion for summary judgment dismissing the complaint on

the ground that defendant established as a matter of law that it did

not have exclusive control of the handrail, i.e., one of the necessary

conditions herein for the applicability of the doctrine of res ipsa

loquitur (see Kambat v St. Francis Hosp., 89 NY2d 489, 494-495; see

generally Zuckerman v City of New York, 49 NY2d 557, 562). We

conclude that plaintiff raised an issue of fact whether the handrail
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CA 13-00851 

was in the exclusive control of defendant, and thus that the court

erred in granting defendant’s motion (see Brink v Anthony J. Costello

& Son Dev., LLC, 66 AD3d 1451, 1452-1453). We therefore modify the

order accordingly. 

“The exclusive control requirement . . . is that evidence must

afford a rational basis for concluding that the cause of the accident

was probably such that the defendant would be responsible for any

negligence connected with it . . . The purpose is simply to eliminate

within reason all explanations for the injury other than defendant’s

negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227

[internal quotation marks omitted]). Here, plaintiff established that

access to the internal stairway is limited to the residents of the

three units in the building and defendant’s maintenance staff (see

Hoffman v United Methodist Church, 76 AD3d 541, 543; cf. Anderson v

Justice, 96 AD3d 1446, 1448; Heckman v Skelly, 63 AD3d 1712, 1712-

1713), and a former maintenance staff person testified that railings

in other buildings had become loose and were tightened as needed. We

therefore conclude that plaintiff raised an issue of fact “that the

cause of the accident was probably such that the defendant would be

responsible for any negligence connected with it” (Dermatossian, 67

NY2d at 227).

Entered: December 27, 2013 Frances E. Cafarell

Clerk of the Court