151 A.D.2d 1025 | N.Y. App. Div. | 1989
Order unanimously reversed on the law without costs and motion denied. Memorandum: Infant plaintiff was healthy and normal when born at defendant hospital on September 10, 1986. On the following
Relying on the doctrine of res ipsa loquitur, plaintiff moved for summary judgment on the issue of defendant’s liability. Supreme Court granted the motion, struck defendant’s answer and ordered an immediate trial on damages. We reverse.
In moving for summary judgment, plaintiff was required to establish her cause of action "sufficiently to warrant the court as a matter of law in directing judgment” in her favor (CPLR 3212 [b]; see also, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1967). Although plaintiff established a prima facie case that defendant’s negligence caused the initial injury to the infant (see, Hill v Highland Hosp., 142 AD2d 955), it does not follow that plaintiff is entitled to judgment as a matter of law. Res ipsa loquitur is a rule of evidence which permits a jury to draw the conclusion from the occurrence of an unusual event that it happened through defendant’s fault (Fogal v Genesee Hosp., 41 AD2d 468, 474). "The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may—but is not required to—draw the permissible inference” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226; see also, George Foltis, Inc. v City of New York, 287 NY 108, 121-122). In the circumstances presented, it is the function of the jury to decide issues of negligence and proximate cause. (Appeal from order of Supreme Court, Erie County, Flaherty, J.—summary judgment.) Present—Dillon, P. J., Callahan, Doerr, Boomer and Lawton, JJ.