Trial commenced in this personal injury action premised on Defendant's negligence on Wednesday morning, January 7, 2026, with the liability phase being tried first. Plaintiff alleged that he was injured inside the building in which he resided — owned by Defendant — located at 3911 13th Avenue ("premises") , in Brooklyn. Paragraph 16 of the verified complaint alleged:

That on November 18, 2019, while the Plaintiff, ELIGIO MATOS, was a lawful resident at the premises known as 3911 13th Avenue, 2nd Floor, Brooklyn, NY 11218, in the County of Kings, City and State of New York, and while exercising due care and caution for his own safety, the Plaintiff, ELIGIO MATOS, sustained serious and severe personal injuries, when the ceiling in the bathroom of his apartment collapsed upon him (NYSCEF Doc No. 1 at 5).

At the close of Plaintiff's case, which comprised only Plaintiff's testimony, Defendant moved to dismiss on the grounds of Plaintiff's having failed to make out a prima facie case of negligence. The Court granted the motion, delivering an oral decision on the record. The Court now expands on its oral decision.

Plaintiff Eligio Matos testified that he lived at the premises continuously for around 55 years. During that time he has had three landlords. The present landlord is Yola Realty. Yola Realty was the landlord on the day of his accident, November 18, 2019. The premises consisted of a ground level storefront, his apartment on the second floor, and an apartment on the third floor. Plaintiff was retired and he resided with his wife and a daughter as tenants in the second floor apartment. He paid rent to "Morris," who was identified as Moussa Katri, a member of Yola Realty LLC.

In 2019, the upstairs apartment (third floor) was empty and Plaintiff saw workmen going there, bringing materials upstairs. He did not recall how long the apartment had been empty before construction began.

On November 18, 2019, Plaintiff and his wife visited their other daughter on Long Island, and returned around 10:30 p.m. Looking in his bathroom, at the ceiling above, there were holes above the tub and the toilet. A shower curtain had been lowered. Each hole was around two or three inches around. Plaintiff wanted to find out why holes were there. He went upstairs. It was dark in the apartment; no lighting. But there was a light in the hallway of the third floor. The door opened.^[FN1] He entered the apartment. He tripped over a pile of wood on the floor, and fell down into the tub in his own bathroom on the second floor. He was unconscious, did not recall falling, and was taken to the hospital.

Before the accident occurred, Plaintiff had not spoken to the construction workers. One did come to see him in the hospital; he spoke in Spanish with him. He asked Plaintiff what happened and Plaintiff told him he fell from the third floor downwards. He told him he went upstairs to see why there were two holes in his bathroom ceiling and why the shower curtain was hanging. At one point later, he spoke with Katri but did not discuss the accident with him.

Earlier in the day of the accident, Plaintiff went along with his wife and younger daughter to see his other daughter in Valley Stream. Upon returning at night, when he looked at the holes in his bathroom ceiling he could see no light in the upstairs. The three of them went upstairs to investigate, five minutes after returning home. Nobody else was upstairs.

He went upstairs to see what he could do to cover the holes and pull up his shower curtain. The handle for his shower curtain was lowered. When inside the apartment on the third floor he did not see a light switch. It was pitch black inside that apartment, and he took three or [*2]four steps inward. There was no door to that apartment's bathroom. He tripped on wood and fell downward.

Plaintiff confirmed that the accident occurred around 10:30 p.m. Plaintiff denied telling the social worker at the hospital that he climbed on his tub to see or cover the holes and then fell down. If the construction worker who visited him in the hospital said that Plaintiff told him he had been standing on the bathtub, that was a lie.

Defense counsel questioned Plaintiff about another lawsuit, Matos v Harry, Kings County Index No. 533718/2023, involving an October 10, 2022 motor vehicle accident. Plaintiff's bill of particulars in that case listed his address as being on Martin Avenue in Valley Stream, not at the premises where the accident occurred and where Plaintiff claimed he had lived for many decades. The bill of particulars was admitted into evidence (Defendant's Exh. A). The statement about living in Valley Stream was published to the jury.

Confirming that Vel Belushin was Plaintiff's attorney in the present case, Defendant offered the complaint herein into evidence (Defendant's Exh. B). The complaint had been verified by Mr. Belushin. Paragraph 16, which described the accident differently (quoted supra at 1), was published to the jury.

Plaintiff rested at the close of his testimony, whereupon Defendant moved to dismiss, arguing that Plaintiff failed to make out a prima facie case of negligence. Defendant argued that Plaintiff was bound by the description in the complaint of how he was injured — that his bathroom ceiling had collapsed on him — and that there was no evidence of negligence on the part of Defendant, the landlord and owner of the premises. Plaintiff countered that he had made out a prima facie case of negligence under the doctrine of res ipsa loquitur.

An owner in possession of real property owes a duty to maintain the property in a reasonably safe condition to prevent foreseeable injuries (see Basso v Miller, 40 NY2d 233, 241 [1976]; Hornung v City of New York, 230 AD3d 659 [2d Dept 2024]; Sweeney v Hoey, 211 AD3d 1071 [2d Dept 2022]). The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Basso v Miller, 40 NY2d at 241; Hornung v City of New York, 230 AD3d 659). "The existence and scope of a tortfeasor's duty is, of course, a legal question for the courts" (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 288 [2001]).

In order for a landlord to be held liable for a defective condition on the premises he must have created the condition or had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, he should have corrected it (see Putnam v Stout, 38 NY2d 607, 612 [1976]; Schnell v Fitzgerald, 95 AD3d 1295 [2d Dept 2012]; Pirillo v Longwood Assoc., Inc., 179 AD2d 744 [2d Dept 1992]). "To constitute constructive notice, a [*3]defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The mere existence of a dangerous condition on a premises will not charge a landlord with negligence unless there was notice (see Pirillo v Longwood Assoc., Inc., 179 AD2d 744). "The mere happening of an accident, in and of itself, does not establish liability of a defendant" (Scavelli v Town of Carmel, 131 AD3d 688, 690 [2d Dept 2015]; see Simmons v Stop & Shop Supermarket Co., 229 AD3d 654 [2d Dept 2024]), "unless the plaintiff can show how the defendant's breach of some duty caused or contributed to the plaintiff's mishap" (Braithwaite v Equitable Life Assur. Socy. of U.S., 232 AD2d 352, 353 [2d Dept 1996]). "Where, as here, there are several possible causes of injury, for one or more of which the defendant is not responsible, the plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible" (id.).

Further, although the scope of a landowner's duty to maintain property in a reasonably safe condition may also include the duty to warn of a dangerous condition, a landowner has no duty to warn of an open and obvious danger (see Tagle v Jakob, 97 NY2d 165, 169 [2001]; Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003]).

Concerning the performance of work by an independent contractor, it has been stated:

The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts (see, Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663, 668; Gravelle v Norman, 75 NY2d 779, 782; Besner v Central Trust Co., 230 NY 357, 362; Prosser and Keeton, Torts § 71 [5th ed]; see also, Restatement [Second] of Torts § 409 [1965]). Although several justifications have been offered in support of this rule, the most commonly accepted rationale is based on the premise that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor (Feliberty v Damon, 72 NY2d 112, 118; Prosser and Keeton, op. cit., at 509). (Kleeman v Rheingold, 81 NY2d 270, 273-274.)

The doctrine of res ipsa loquitur was expounded upon at length by the Court of Appeals in Kambat v St. Francis Hosp. (89 NY2d 489 [1997]), a case involving a cause of action for death of a patient allegedly from leaving an 18-by-18 inch laparotomy pad inside a patient.

Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it (see, Abbott v Page Airways, 23 NY2d 502, 510; Restatement [Second] of Torts § 328 D, comments a, b). Res ipsa loquitur "simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226).

Once a plaintiff's proof establishes the following three conditions, a prima facie case of [*4]negligence exists and plaintiff is entitled to have res ipsa loquitur charged to the jury. First, 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 (Ebanks v New York City Tr. Auth., 70 NY2d 621, 623).

To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that "it is more likely than not" that the injury was caused by defendant's negligence (Restatement [Second] of Torts § 328 D, comment e). Stated otherwise, all that is required is that the likelihood of other possible causes of the injury "be so reduced that the greater probability lies at defendant's door" (2 Harper and James, Torts § 19.7, at 1086). Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and Keeton, Torts § 40, at 257 [5th ed]), and it is appropriately charged when, "upon 'a commonsense appraisal of the probative value' of the circumstantial evidence, ... [the] inference of negligence is justified" (George Foltis, Inc. v City of New York, 287 NY 108, 115).

Submission of res ipsa loquitur, moreover, merely permits the jury to infer negligence from the circumstances of the occurrence. The jury is thus allowed— but not compelled—to draw the permissible inference (Dermatossian v New York City Tr. Auth., 67 NY2d at 226, supra; Prosser and Keeton, Torts § 40, at 258 [5th ed]). In those cases where "conflicting inferences may be drawn, choice of inference must be made by the jury" (George Foltis, Inc. v City of New York, 287 NY at 118, supra).

Here, the Appellate Division majority concluded that plaintiffs' proof at trial failed to satisfy any of the three conditions. With regard to the first requirement in particular, the appellate court agreed with the trial court that a lay jury could not determine whether the occurrence was of a kind that ordinarily does not occur in the absence of negligence without evaluating the parties' expert testimony and, therefore, res ipsa loquitur did not apply.

In the typical res ipsa loquitur case, the jury can reasonably draw upon past experience common to the community for the conclusion that the adverse event generally would not occur absent negligent conduct (Prosser and Keeton, Torts § 39, at 247 [5th ed]; Restatement [Second] of Torts § 328 D, comment d). In medical malpractice cases, however, the common knowledge and everyday experience of lay jurors may be inadequate to support this inference. Courts and commentators across the country have come to varying conclusions as to whether expert testimony can be used to educate the jury as to the likelihood that the occurrence would take place without negligence where a basis of common knowledge is lacking.* Courts in this State, as well, have differed as to whether expert testimony can supply the necessary foundation for consideration of res ipsa loquitur by a jury (compare, Ceresa v Karakousis, 210 AD2d 884, with Stanski v [*5]Ezersky, 228 AD2d 311, reh denied App Div, 1st Dept, Sept. 19, 1996; and Schoch v Dougherty, 122 AD2d 467).

Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the plaintiff's body (see, e.g., Connors v University Assocs. in Obstetrics & Gynecology,, 4 F3d at 127, supra; Haddock v Arnspiger, 793 SW2d at 951, supra; Wasem v Laskowski, 274 NW2d at 225, supra; Todd v Eitel Hosp., 306 Minn at 260, 237 NW2d at 361, supra; Restatement [Second] of Torts § 328 D, comments d, g, illustration 9). As explained by Prosser and Keeton in their classic treatise:

"There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge or implement in the patient's interior, ... the thing speaks for itself without the aid of any expert's advice." (Prosser and Keeton, Torts § 40, at 256-257 [5th ed] [emphasis added].) (Kambat v St. Francis Hosp., 89 NY2d at 494-496 [1997].)

In an earlier application of the doctrine, the Court of Appeals stated:

The action was tried and submitted to the jury on an erroneous theory as to the application of the rule of res ipsa loquitur. It is not a complicated rule, nor is there difficulty in applying it in a given case, when the reason for its adoption is understood. The phrase usually employed to express the rule, res ipsa loquitur—the thing speaks for itself—may at times tend to obscure rather than to make clear what the rule means. All that is meant is that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of any other evidence bearing upon the subject, the inference that the accident was due to the negligence of the one having possession or control of the article or thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that unless an explanation be given the only fair and reasonable conclusion is that the accident was due to some omission of defendant's duty. (Francey v Rutland R.R. Co., 229 NY 482, 484 [1918] [emphasis added]).

Where it can be inferred that a plaintiff was also comparatively negligent in the happening of an accident, it is not proper to apply res ipsa loquitur (see Cacciolo v Port Auth. of New York, 186 AD2d 528 [2d Dept 1992] ["plaintiff could have decided not to enter what she concededly perceived to be an 'unusual' situation"]).

In commencing analysis of the foregoing case law to Plaintiff's case the Court assumes [*6]that his testimony as to what transpired — that he fell through the third-floor into his own apartment — is truthful.

While Plaintiff established that Defendant owned the premises where the accident occurred, he failed to make out a prima facie case that Defendant owed a duty of care to him under the circumstances. It would not reasonably be expected that Plaintiff would ascend the stairs to the floor where he did not live in order to inspect the apartment above him. It would not be expected that there was a likelihood of Plaintiff falling through the third floor into his own, second-floor apartment. It would be reasonable for a landlord to conclude that where he has procured people to repair an apartment to undertake renovations, the downstairs tenant would not trespass into the apartment and, therefore, there was no need to secure the upstairs apartment to prevent intruders (see Basso v Miller, 40 NY2d 233; Hornung v City of New York, 230 AD3d 659).

Plaintiff submitted no testimony that Defendant created a condition whereby there was a floor that would not hold the weight of a person walking on it. Likewise, Plaintiff submitted no testimony that Defendant had actual knowledge or constructive knowledge of a condition whereby the third-floor's floor would not hold the weight of a person walking on it. Even if Defendant was aware — directly or vicariously — of small holes in the third-floor's floor (which doubled as the ceiling above Plaintiff's bathroom), that does not mean that Defendant was directly or constructively aware of a defective floor condition incapable of holding the weight of people. (See Putnam v Stout, 38 NY2d 607 [1976]; Schnell v Fitzgerald, 95 AD3d 1295; Pirillo v Longwood Assoc., Inc., 179 AD2d 744.) Plaintiff would not be able to claim constructive notice inasmuch as he offered no testimony how long the holes in his bathroom ceiling existed; theoretically they could have been there for a brief period of time such that Defendant, as the landlord, would not have had time to notice and repair the condition (see Gordon v American Museum of Natural History, 67 NY2d 836).

Plaintiff's argument in opposition against the motion rests upon the implied notion that the mere existence of some condition in the third-floor's floor and his falling through the floor was proof of negligence on the part of Defendant. The Court rejects this (see Simmons v Stop & Shop Supermarket Co., 229 AD3d 654; Pirillo v Longwood Assoc., Inc., 179 AD2d 744; Scavelli v Town of Carmel, 131 AD3d 688). Additionally, there was an open and obvious danger — holes in his ceiling — according to Plaintiff's own testimony, which would vitiate his cause of action (see Tagle v Jakob, 97 NY2d at 169; Cupo v Karfunkel, 1 AD3d 48).

In any event, Plaintiff failed to adduce testimony as to who performed the work on the third floor. Were the workers employees or independent contractors? We do not know. If they were independent contractors, Defendant would not be responsible for any condition they created, whether it be the wood on the floor or the weak floor (see Kleeman v Rheingold, 81 NY2d 270).

In opposition to Defendant's motion at the close of Plaintiff's case, consisting solely of Plaintiff's testimony, the latter argued that res ipsa loquitur applied. The first condition for applying this doctrine is that the event must be of a kind that ordinarily does not occur in the [*7]absence of someone's negligence (see Kambat v St. Francis Hosp., 89 NY2d at 494). This condition was not met here. There are possible reasons for falling through a floor other than negligence. One is that the wood was eaten through by wood-boring insects. Another is that a person walking on a precarious floor simply misjudged his ability to traverse holes that he knew about.

The second condition necessary for applying res ipsa loquitur is that the event must be caused by an agency or instrumentality within the exclusive control of the defendant (id.). There was no testimony from Plaintiff as to who placed the wood over which he allegedly tripped. He did not testify that Defendant had placed the wood there. Presumably the wood was placed there by the workers renovating the third floor, but there was no testimony that they were Defendant's employees, as opposed to independent contractors. Where responsibility for work is placed by an owner on someone else, the owner is not necessarily in exclusive control of the instrumentality (see Ezzard v One East River Place Realty Co., LLC, 129 AD3d 159 [1st Dept 2015]).

The third condition is that the event which occurred must not have been due to any voluntary action or contribution on the part of the plaintiff (id.). Clearly, Plaintiff was contributorily negligent in his accident. He ascended the steps to the third-floor where he had no business being. He knew it was dark inside the third-floor apartment, yet he walked inside. All sorts of potential dangers existed due to construction which he was aware was taking place. He saw holes in his bathroom ceiling, enabling him to peer upward into the third floor apartment, which ergo meant that the holes were present on the third floor's floor, and yet he walked into the third-floor apartment. Under such circumstances he was not entitled to assert res ipsa loquitur (see Cacciolo v Port Auth. of New York, 186 AD2d 528 [plaintiff entered elevator although it did not open fully]).

Application of res ipsa loquitur is an evidentiary rule enabling a jury to infer negligence merely from the happening of an event. However, one must not forget that the "the circumstances involved in or connected with [it] are of such an unusual character" (Francey v Rutland R.R. Co., 229 NY at 484). What transpired here was not unusual. One would likely assume that walking into a dark apartment which is undergoing renovation poses a potpourri of risks. The voluntary entry into such a situation is not one that calls for the invocation of res ipsa loquitur. Moreover, what transpired is something that is within the ken of the average juror, i.e., that one walking into a dark apartment undergoing renovation can encounter an accident, unlike the situation in a medical malpractice case where charging res ipsa loquitur is justified due to the likelihood of medical personnel being responsible (see Kambat v St. Francis Hosp. (89 NY2d 489).

It was stated in Braithwaite v Equitable Life Assur. Socy, of U.S. (232 AD2d 352), cited supra at 3,

The instant matter could not be submitted to a jury on the theory of res ipsa loquitur, both because the injured plaintiff's accident could have happened without negligence on anyone's part, and because the injured plaintiff himself could have been solely [*8]responsible for his own injury when he "mis-stepped" onto the escalator. Here, the event could well have occurred in the absence of negligence, the injured plaintiff apparently caused or contributed to his own injury, and the offending instrumentality was not within the exclusive control of the defendants [citations omitted]. (Id. at 354.)

The foregoing all assumed that Plaintiff truthfully related what occurred on the night of November 18, 2019. That being the case, Plaintiff failed to present a prima facie case of negligence on the part of Defendant. Res ipsa loquitur was not applicable. The Court deems its grant of Defendant's motion to dismiss as correct.

Defendant, on his motion following the close of Plaintiff's case, advanced another version of what transpired — a version attested to by Plaintiff's attorney. That is the version described in paragraph 16 of the verified complaint is this action: "[T]he Plaintiff, ELIGIO MATOS, sustained serious and severe personal injuries, when the ceiling in the bathroom of his apartment collapsed upon him" (NYSCEF Doc No. 1 at 5). Plaintiff's complaint was verified by his attorney Vel Belushin. "Admissions by counsel, as by any other agent, are admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity" (Bellino v Bellino Constr. Co., 75 AD2d 630, 630 [2d Dept 1980]; see Rosales v Rivera, 176 AD3d 753 [2d Dept 2019]). There is nothing to show that Mr. Belushin lacked authority to file the complaint on Plaintiff's behalf. Plaintiff identified Mr. Belushin as his attorney.

"When a party to a civil action has made admissions of facts material to the issue in the action, it is always competent for the adverse party to give them in evidence, and it matters not whether the admissions were in writing or by parol, nor when nor to whom they were made. Admissions do not furnish conclusive evidence of the facts admitted, unless they were made under such circumstances as to constitute an estoppel, or were made in the pleadings in an action, when they are conclusive in that action." (Cook v Barr, 44 NY 156, 158 [1870] [emphasis added].) Facts admitted by a party's pleadings constitute formal judicial admissions (see HMS Batching, Inc. v TADCO Constr. Corp., 120 AD3d 549 [2d Dept 2014]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (see Kimso Apts., LLC v Gandhi, 24 NY3d 403, 412 [2014]; Carey v Toy Industry Assn. TM, Inc., 216 AD3d 404 [1st Dept 2023]; Farage v Ehrenberg, 124 AD3d 159 [2d Dept 2014]; 124 AD3d 159). This is in contrast where the admission is raised in another action, in which instance the admission is an informal admission, subject to being contested by the party who made it (see Maldonado v Queens Village Mgt. Corp., 86 Misc 3d 1241[A], 2025 NY Slip Op 51186[U] [Sup Ct, Kings County 2024]).

Since Plaintiff's complaint, verified by his attorney, alleged that his bathroom ceiling collapsed on him, he is bound by that version of the events, which is in contrast to the version he testified to: going upstairs, entering the third-floor apartment, and falling through the floor there into his own bathroom on the second floor. Even if the judicial admission was not a formal one, [*9]but rather an informal one, Plaintiff failed to explain how the complaint contained a version of events contradictory to his testimony. The issue of the contents of the complaint was raised during cross-examination of Plaintiff. This was before Plaintiff rested. He could have called Mr. Belushin, the attorney who verified the complaint, to account for the discrepancy, yet he did not do so and rested. There is no question but that Plaintiff is bound by the version in the verified complaint.

Without repeating the case law and discussion above regarding negligence, the Court determines that it correctly granted Defendant's motion to dismiss when deeming the occurrence of the accident in accordance with the version alleged in the verified complaint. Plaintiff offered no evidence that Defendant created a defective condition in Plaintiff's bathroom ceiling or had actual or constructive knowledge of any defective condition there. The same result ensues if one were to consider res ipsa loquitur. Since "[P]laintiff had been residing at [his] apartment for more than one year at the time of the incident, . . . the defendant did not have the requisite exclusive control over the allegedly defective condition" (Correa v Matsias, 153 AD3d 1312 [2d Dept 2017]). "Accordingly, the doctrine of res ipsa loquitur [would] be unavailable to the plaintiff at trial" (id.; see Matson v Dermer Mgt., Inc., 200 AD3d 772 [2d Dept 2021])

In the Court's oral decision, it referenced Plaintiff's not having raised res ipsa loquitur in the pleadings or in the bill of particulars. The Court now recognizes that this per se would not be relevant to a determination of the motion (see Abbott v Page Airways, Inc., 23 NY2d 502 [1969]; Wicks v Leemilt's Petroleum, Inc., 103 AD3d 793 [2d Dept 2013]; Weeden v Armor Elevator Co., Inc., 97 AD2d 197 [2d Dept 1983]). However, "it would be impermissible to rely on res ipsa if the proof adduced by the plaintiff actually refutes or negates the inference which might otherwise have been drawn from application of that doctrine" (Abbott v Page Airways, Inc., 23 NY2d at 511). The situation the Court encountered in this trial was that Plaintiff testified that he went upstairs to the third floor and fell through the floor into his second-floor apartment, which is at total variance with the version attested to in the complaint, to wit, that his own bathroom ceiling fell on him. Under such circumstances, res ipsa loquitur would not be an appropriate doctrine to apply (see Calix v Verizon New York, Inc., 2019 WL 7879319 [Sup Ct, Bronx County 2019]).

Moreover, in light of the inconsistency between the two versions of how the accident occurred, Plaintiff's case was so compromised that judgment as a matter of law for Defendant was appropriate (see Beshay v Eberhart L.P. 1 [2d Dept 2010]). "The bottom line is that if the basis of a CPLR 4401 dismissal is a fatal admission by the proponent of a claim, the dismissal may be ordered at that time, without having to wait to the conclusion of the party's case" (Mark C. Dillon, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C4401:2). In the instant trial, Defendant waited until after Plaintiff rested to make its motion. Therefore, judgment for Defendant was appropriate based on the convoluted evidence from Plaintiff.

With Plaintiff being bound by the version how the accident occurred as described in his complaint, granting Defendant's motion to dismiss was correct, as there was a failure to prima facie prove negligence by Defendant, even if res ipsa loquitur were applied.

The order executed by the Court on January 7, 2026, reads as follows:

Upon motion by Defendant after Plaintiff rested in the trial of this action, the motion to dismiss for failing to make out a prima facie cause of action is GRANTED (see CPLR 4401).

The complaint is hereby dismissed.

The Clerk shall enter judgment accordingly.

The Court reserves the opportunity to write a decision. However, a decision (including citations) was dictated on the record.

Upon the consideration of the additional analysis engaged in herein, the Court confirms its determination to grant Defendant's motion to dismiss made at the close of Plaintiff's case (see CPLR 4401). Plaintiff failed to make out a prima facie case of negligence on the part of Defendant proximately resulting in the alleged accident.