        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

644
CA 13-02156
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


CHRISTINA CLAYPOOLE AND JOSEPH CLAYPOOLE,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TWIN CITY AMBULANCE CORP., DEFENDANT-APPELLANT.


COLUCCI & GALLAHER, P.C., BUFFALO (REGINA A. DELVECCHIO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

CHRISTOPHER A. PRIVATEER, LOCKPORT, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Ralph
A. Boniello, III, J.), entered May 13, 2013 in a personal injury
action. The order denied defendant’s motion for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action alleging that
defendant’s employees were negligent in transporting Christina
Claypoole (plaintiff) by ambulance from her home to the hospital,
causing her to sustain a hip fracture. Defendant moved for summary
judgment dismissing the complaint, contending that it was not
negligent and that there was no proof to establish that plaintiff
sustained any injury or harm while she was in defendant’s care.
Supreme Court denied the motion, and defendant now appeals.

     Defendant contends that it established that it was not negligent
and that the doctrine of res ipsa loquitur is not available as a means
for plaintiffs to establish negligence. We reject that contention.
Defendant’s own submissions establish the applicability of the res
ipsa loquitur doctrine and thus raise triable issues of fact
concerning defendant’s negligence (see generally Kambat v St. Francis
Hosp., 89 NY2d 489, 494; Backus v Kaleida Health, 91 AD3d 1284, 1285).
In order for a plaintiff to rely on the doctrine of res ipsa loquitur,
three core elements must be present: “[f]irst, the event must be of a
kind that ordinarily does not occur in the absence of someone’s
negligence; second, it must be caused by an agency or instrumentality
within the exclusive control of the defendant; and third, it must not
have been due to any voluntary action or contribution on the part of
the plaintiff” (Kambat, 89 NY2d at 494).
                                 -2-                           644
                                                         CA 13-02156

     In support of its motion, defendant submitted evidence that,
while plaintiff was unconscious and in the exclusive custody of
defendant, she sustained a hip fracture. Although defendant submitted
an affidavit from an expert who opined that there was no evidence that
defendant deviated from the standard of care, and defendant’s attorney
contended that plaintiff’s injury occurred during the seizure that
resulted in the need for defendant’s services, the evidence submitted
by defendant also established “that the likelihood of other possible
causes of the injury ‘[are] so reduced that the greater probability
lies at defendant’s door’ ” (id. at 495; see DeCarlo v Eden Park
Health Servs., Inc., 66 AD3d 1211, 1212-1213; Roman v Board of Educ.
of City of N.Y., 9 AD3d 305, 307). Defendant submitted plaintiff’s
deposition testimony in which she stated that she did not have any
pain in her hip before she suffered the seizure. Plaintiff briefly
regained consciousness after the seizure but before being placed in
the ambulance. At that time, she still did not have any pain in her
hip. It was not until plaintiff regained consciousness for a second
time inside the ambulance that she felt pain in her hip and felt one
of the ambulance workers pressing on her hip. Upon her arrival at the
hospital, the pain in her hip continued, and radiographs of her hip
established that she had sustained a fracture to her hip. In our
view, that evidence establishes the applicability of res ipsa loquitur
and, as a result, raises triable issues of fact concerning defendant’s
negligence (see States v Lourdes Hosp., 100 NY2d 208, 210-213, rearg
denied 100 NY2d 577; Backus, 91 AD3d at 1285-1286; DeCarlo, 66 AD3d
1212-1213; Ceresa v Karakousis, 210 AD2d 884, 884-885).

     Although defendant further contends that plaintiffs cannot
establish that defendant’s actions were a proximate cause of
plaintiff’s injury, a defendant seeking summary judgment “must
affirmatively establish the merits of its . . . defense and does not
meet its burden by noting gaps in its opponent’s proof” (Orcutt v
American Linen Supply Co., 212 AD2d 979, 980; see New York Mun. Ins.
Reciprocal v Casella Constr., Inc., 105 AD3d 1440, 1441). We thus
conclude that defendant’s motion for summary judgment dismissing the
complaint was properly denied.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
