205 Misc. 83 | N.Y. Sup. Ct. | 1953
Special Referee. Plaintiff sues the defendant to recover damages for injuries claimed to have been sustained by him as a result of the fall of a screen weighing more than four pounds which was outside a transom above the door of a shop at No. 206 Gramatan Avenue, Mt. Vernon, New York. Defendant was one of the owners of the building. The shop was leased to one Tantillo, whom the defendant impleaded and against whom he served a third-party complaint, under section 193-a of the Civil Practice Act, to which an answer was interposed. The lease thereof provides that the tenant (Tantillo) should make all repairs to the premises, except structural ones, and certain others with which it is now unnecessary to deal. At the time the injuries were sustained by plaintiff he was entering Tantillo’s shop in connection with some business with him. The door to the shop was reached by a “ vestibule ”, as the witnesses described it, which ran for a short distance from the building line of the property to the door and was not part of the sidewalk proper, and was used as a means of ingress into and egress from the store. The screen was for the benefit of Tantillo who conducted a butcher shop, and was a means of keeping flies out. It was there when the store was rented, and had been there for more than eight years, during all of which time Tantillo was in occupancy. It is my opinion that the doctrine of res ipsa loquitur applies, especially since no explanation was offered to show why the screen happened to fall. (McNulty v. Ludwig & Co. 125 App. Div. 291; 153 App. Div. 206; Feder v.