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ZURLO v. METROPOLITAN TR AUTH

184 Misc.2d 988 (2000)

712 N.Y.S.2d 305

ROBERT ZURLO, Respondent, v. METROPOLITAN TRANSIT AUTHORITY et al., Appellants.

Supreme Court, Appellate Term, Second Department.

June 26, 2000.

Attorney(s) appearing for the Case

Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for appellants.

Howard M. File, P. C., Staten Island, for respondent.

ARONIN, J. P., SCHOLNICK and PATTERSON, JJ., concur.

OPINION OF THE COURT

MEMORANDUM.

Judgment unanimously affirmed without costs.

Submission of a case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: (1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality causing the accident was within defendant's exclusive control; and ...

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