Zecevic v. LAN Cargo S.A. , 25 N.Y.S.3d 883 ( 2016 )

Zecevic v LAN Cargo S.A. (2016 NY Slip Op 01579)

Zecevic v LAN Cargo S.A.

2016 NY Slip Op 01579

Decided on March 3, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2016
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.

410 152477/13

[*1]Nenad Zecevic, et al., Plaintiffs-Appellants, —

v

LAN Cargo S.A., et al., Defendants-Respondents, TGT Transport, Inc., Defendant.

Jaroslawicz & Jaros, LLC, New York (Norman E. Frowley of counsel), for appellants.

Brown Gavalas & Fromm LLP, New York (David H.Fromm of counsel), for respondents.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered February 5, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff Nenad Zecevic was allegedly injured after a crate weighing approximately 400 pounds fell on him as he was working at John F. Kennedy International Airport. Defendants contend that an unusually strong wind caused the crate to fall.

Supreme Court properly denied plaintiffs' motion for partial summary judgment on the issue of liability. Although plaintiffs may be entitled to invoke the doctrine of res ipsa loquitur at trial, they are not entitled to partial summary judgment because the circumstantial proof is insufficient to create an inescapable inference of defendants' negligence (see Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]; Stubbs v 350 E. Fordham Rd., LLC, 117 AD3d 642, 644 [1st Dept 2014]; Palomo v 175th St. Realty Corp., 101 AD3d 579, 581 [1st Dept 2012]; Tora v GVP AG, 31 AD3d 341 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2016

CLERK