16.) According to Toote, the Holmes's employee told him that he
did not have the key to the premises in which the alarm had been
triggered and accordingly left. (Toote Dep. 23.) Toote did not
have keys to any tenant's premises. (Toote Dep. 73.) Plaintiffs
argue that defendants failed to take reasonable measures in
response to the incident to prevent Mink Mart's loss. Plaintiffs
present no evidence, however, as to which alarm in the 25-floor
building Holmes was responding to or why the alarm went off.
Plaintiffs also fail to present evidence that any of the relevant
tenants on the ninth or tenth floor had alarm service with
Holmes. According to the undisputed testimony of Haralabatos,
Mink Mart had alarm service with Kerman Protection. (Haralabatos
Finally, plaintiffs note discrepancies in defendants'
explanation for the cause of the flood. For instance, there is
conflicting testimony as to whether water was flowing from the
sink on the morning of July 28 (although all relevant witnesses
testified that the sink was full of water and that there was
water on the bathroom floor). Plaintiffs also assert that the
sink could not have been the source of the flood because any
overflowing water would have drained through the floor urinal.
While plaintiffs are correct that there are issues of disputed
fact relating to defendant's account of the water damage, this is
not a basis to deny defendants' motion for summary judgment on
plaintiffs' claim. This is plaintiffs' lawsuit, and they bear the
burden of proving their claim. While plaintiffs have cast some
doubt on defendants' explanation for the water damage, they have
not proffered evidence supporting their own theory.
Because plaintiffs have not proffered evidence from which a
reasonable trier of fact could conclude that the cause of the
accident was the tenth-floor air conditioner, summary judgment
must be granted.
IV. Res Ipsa Loquitur
Plaintiffs argue that because the landlord had sole
responsibility for the air conditioners, they can make out a
negligence case based on a theory of res ipsa loquitur for
water damage arising from an air-conditioner leak. However, this
argument fails for the reasons already articulated: plaintiffs
have not come forward with evidence showing that there was an
At oral argument, counsel refined his argument. He contended
that if a jury could find that the tenth-floor bathroom was not
the cause of the water damage on the ninth floor, then a jury
could conclude that the landlord was responsible for the damage
on the basis of res ipsa loquitur. (2/5/99 Tr. 6-7.) This
argument also fails. Application of the doctrine of res ipsa
loquitur requires that the accident was caused by an agency or
instrumentality within the exclusive control of the defendant.
Ebanks v. New York City Transit Auth., 70 N.Y.2d 621, 623,
518 N.Y.S.2d 776, 512 N.E.2d 297 (1987). Even under plaintiffs' new
theory, they would need to demonstrate that any other
instrumentalities that might reasonably have caused the water
damage were in the exclusive control of the defendants.
Plaintiffs have not made such a showing. Moreover, while
plaintiffs have cast some doubt on defendants' explanation of the
cause of the damage, they have not shown that the hypothetical
air-conditioner leak was more likely than the lavatory sink to
have caused the damage. See generally Pollock v. Rapid Indus.
Plastics Co., 113 A.D.2d 520, 526, 497 N.Y.S.2d 45, 50 (2d Dep't
1985) (the "general purpose" of the exclusive control requirement
is to "indicat[e] that it probably was the defendant's negligence
which caused the accident") (quoting Corcoran v. Banner Super
Market, Inc., 19 N.Y.2d 425, 432, 280 N.Y.S.2d 385,
227 N.E.2d 304 (1967)).
For the reasons set forth above, the motion of Clemons
Management Corp. and
Sidney J. Bernstein, Inc. for summary judgment on the claims of
Mink Mart, Inc. and Reliance Insurance Company are granted.