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A man who fell through a pane of glass at a downtown Manhattan health club can pursue an Administrative Code claim, but cannot argue the accident itself is proof of liability, a divided panel of New York’s Appellate Division, 1st Department ruled Tuesday. The majority reversed the trial court’s grant of summary judgment in favor of the health club, the property owner and its managing agent, but affirmed the dismissal of the plaintiff’s res ipsa loquitur theory. The dissenters said that the plaintiff’s claim, that a window “exploded” without pressure being exerted upon it, presented a factual basis for a res ipsa loquitur theory of liability, under which negligence is proven by the very nature of the incident. When the doctrine is in play, the burden of proof shifts to the defendants to refute the inference of negligence. In Pappalardo v. New York Health & Racquet Club, 622, plaintiff Michael R. Pappalardo was working out on the second floor of the New York Health & Racquet Club fitness center located at 24 E. 13th Street when he got up from an exercise machine to stretch. He stood next to a floor-to-ceiling window, directly in front of the machine which his girlfriend was using. Pappalardo claimed that when he stepped back to tie his shoe, his buttock brushed the glass and the window pane shattered. He fell to the pavement and sustained injuries. The majority, led by Justice Eugene Nardelli, said that the plaintiff’s brush with the pane of glass could have caused the failure of the window pane to hold. Therefore, the case is not one of res ipsa loquitur, where the defendant’s responsibility may be presumed because the injury could not have happened but for an act of negligence, the majority said. Plaintiff’s counsel, in papers supporting the motion, characterized the factual scenario as a “failure” of the window pane to hold, subsequent to the plaintiff’s brush with the glass, Nardelli pointed out. The brush could be a “voluntary action” or contribution by Pappalardo to the accident, the court noted, thus denying use of the doctrine which would make plaintiff’s case easier to prove. Joining Nardelli were Justices Peter Tom and Richard T. Andrias. Justice Angela M. Mazzarelli, writing in dissent, said that the majority overestimated the impact of the brush. The only acknowledgment of contact was from Pappalardo’s own deposition, she said, pointing out that a brush does not imply that any force was exerted against the window. “[A]bsent evidence of excessive force, brushing against a properly installed, secure window would not normally cause it to shatter,” she wrote. The conclusion that the brush could have contributed to the window’s failure represents “an overly restrictive construction of the res ipsa doctrine,” she said. It is natural to expect that some health club patrons would brush up against a window pane, she said. It is not natural that the pane would shatter on such contact, without undue force or pressure. Justice Mazzarelli was joined in dissent by Justice John T. Buckley. The majority said that Manhattan Supreme Court Justice Jane Solomon erred when she said that Pappalardo failed to plead a cause of action based on any violation of the city Administrative Code because it was unknown when the building was constructed, and therefore unknown whether the windowpane was covered under a “grandfather clause” in the code. Under the Administrative Code, it is a violation to maintain glass that is too thin or brittle to withstand normal pressure. While Justice Solomon had ruled that the code may not apply because of the “grandfather clause,” the 1st Department said that the defendants may have run afoul of the code. The burden of proving compliance with the Administrative Code rests with the defendant in this case, Justice Nardelli said. That is because the plaintiff has offered evidence that there were substantial alterations to the building since the enactment of the code, and there was also a showing that the defendants believed the code applied. The defendants, Nardelli reasoned, “are certainly in a better position to obtain documentation concerning the alterations, their costs and the value of the building, [yet] they have remained silent.” Justices Mazzarelli and Buckley agreed with Nardelli on the Administrative Code issue. The majority also upheld summary judgment in favor of the defendants on negligence issues, holding that Pappalardo failed to prove actual or constructive knowledge of the defect in the window. Pappalardo was represented by James M. Lane, of New York’s Schneider Kleinick Weitz Damashek & Shoot. Barry Jacobs, of New York’s Thurm & Heller, represented New York Health & Racquet Club. Edward Owen, of Turner & Owen, was defense counsel for the building owner and management agent.

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