DECISION/ORDER In this action, plaintiff Porfiria Marmol sues defendants 2609 Briggs Realty, LLC and Rosenberg Diamond Development Corp. and Diamond Property Group, Inc. (collectively referred to as “Defendants”). Plaintiff now moves for partial summary judgment, pursuant to CPLR §3212, on the issue of liability under the doctrine of res ipsa loquitur, and to preclude evidence or testimony, pursuant to CPLR §3126, citing spoilation of the evidence. Plaintiff’s motion is granted to the extent of summary judgment on the issue of liability. This action stems from an incident that occurred on August 5, 2014. It is undisputed that plaintiff, defendants’ tenant, was opening her kitchen cabinet door, when she was struck as the cabinet suddenly fell from the wall and onto plaintiff.The doctrine of res ipsa loquitur permits an inference of negligence to be drawn from the very occurrence of a certain type of accident and the defendant’s relation to it. If the requirements for application of the doctrine are met, circumstantial evidence allows, but does not require, a jury to infer that the defendant was negligent where the circumstantial proof is so convincing and the defendant’s response is so weak that the inference of negligence is inescapable. This is true even when the specific cause of the accident is unknown. Pavon v. Rudin, 254 A.D.2d 143, 679 N.Y.S.2d 27, 1998 N.Y. App. Div. LEXIS 11039. A plaintiff sufficiently invokes the theory of res ipsa loquitur upon establishing the following three 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; and (3) it must not have been due to any voluntaryaction or contribution on the part of the plaintiff (see, Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 678 N.E.2d 456, 655 N.Y.S.2d 844 [1997]). In support of her motion, plaintiff submitted the following undisputed testimonial and documentary evidence that: there was leakage of water into plaintiff’s apartment; that defendants initiated repairs more than 5 days prior to the incident in the apartment above hers; that defendants’ manager stated that the cabinets were installed during his tenure as manager as part of the “vacancy reshape” prior to the rental to the plaintiff; that the tenancy began on November 1, 2010, four years before the incident. Plaintiff also provided pictures showing the cabinet, ceiling, and walls surrounding the cabinet. The circumstantial evidence presented by Plaintiff supports the conclusion that the cabinet fell because of either unaddressed water damage or improper installation (i.e., properly installed kitchen cabinets do not normally fall off of walls within a four-year period of being installed) or both.In opposition, Defendants argue that they had no notice of the leak from the Plaintiff, that the cabinets were not in their exclusive control. Defendants’ manager also speculated that the cabinets were overloaded and, further, that someone could have tampered with the cabinets. Defendants do not dispute that there were repairs necessary to the pipes in the apartment just above Plaintiffs. In fact, the Plaintiff presented receipts for the parts that were purchased to complete those repairs. Plaintiff’s pictures also provide images of the aftermath of the improbable event — the cabinet and its contents lying on the surfaces below. Moreover, there is no dispute that the cabinets were in place for approximately four years, a short time in the life span of kitchen cabinets. Defendants present no evidence in support of the speculation that Plaintiff “could have” tampered with the cabinets, or the notion that the Plaintiff’s kitchen cabinets were “overloaded” with dishes, pots and/or cans.Defendants mistakenly identify the “event” in the first prong of the res ipsa loquitur analysis as the water leakage. Although, as noted above, that may have contributed to the cabinet falling off the wall and onto the Plaintiff, Plaintiff correctly identifies the “event” as the falling of the cabinet. Such an event would not ordinarily occur in the absence of negligence. Secondly, Defendants argue that the instrumentality was not within the Defendants’ complete control. Given that the instrumentality of the event was the cabinet, both a failure to repair a leak or properly install the cabinet were, to the contrary, completely within Defendants’ control. Tenants are not responsible for purchasing parts or repairing leaks. Nor do they install kitchen cabinets. Finally, the implication that Plaintiff voluntarily caused or contributed to this event is, based on the photographic evidence, almost humanly impossible except in the course of a demolition of some nature. Moreover, no physical evidence has been preserved by Defendants. Therefore, there are no material facts that need to be determined with regard to Defendants’ liability. Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 851 N.E.2d 1143, 818 N.Y.S.2d 792, 2006 N.Y. LEXIS 1256, 2006 NY Slip Op 3619: Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851 (N.Y. 1985).Plaintiff’s motion to preclude is denied at the present time, with leave to renew at the time of trial. It is not clear that Plaintiff did not have an opportunity ensure the preservation of the evidence, or that Defendants intentionally destroyed it since it appears that Plaintiff had access to and obtained photographs of the cabinets shortly after the event.Accordingly, it isORDERED that Plaintiff’s motion for summary judgment on the issue of liability under the doctrine of res ipsa loquitur is hereby granted and, at trial, the jury will be instructed accordingly; and it is furtherORDERED that Plaintiff’s motion to preclude evidence or testimony, pursuant to CPLR §3126, on the basis of spoliation is hereby denied.This constitutes the Decision and Order of this Court.Dated: 4/16/18
