If Accident-Producing Object Is Accessible by Third Persons the Defendant Does Not Have Exclusive Control
In Dillenberger v. 74 Fifth Ave. Owners Corp. (155 AD2d 327, 547 NYS2d 296 [1st Dept 1989]), the building owner had the exclusive control of the water pipe that broke as he was required by the lease to maintain the plumbing, heating and sprinkler system and the inference of negligence was not rebutted by any admissible evidence.
Similarly, in Richard Equipment Corp. v. Manhattan Industrial Contracting Co. (9 A.D.2d 691, 191 N.Y.S.2d 587 [2d Dept 1959]), the heavy piece of machinery which caused the accident was in the exclusive possession and control of the defendant's workers during the course of their work on it.
"There must be a showing of sufficient exclusivity to fairly rule out the chance that any purported defect. . . was caused by some agency other than the defendant's negligence" (American Guar. & Liability Ins. Co. v. Federico's Salon, Inc., 66 AD3d 521, 888 N.Y.S.2d 468 [1st Dept 2009], citing Edmonds v. City of Yonkers, 294 AD2d 330, 743 NYS2d 117 [2d Dept 2002], Iv denied 98 N.Y.2d 612, 779 N.E.2d 186, 749 N.Y.S.2d 475 ).
"When the accident-producing object is accessible by third persons, [. . .], the defendant does not have exclusive control of it (79 NY Jur 2d, Negligence 151). "Proof that third parties have had access to the instrumentality generally destroys the premise [of res ipsa loquitur], and [. . .] negligence cannot be inferred" (De Witt Prop., Inc. v. City of New York, 44 NY2d 417, 377 N.E.2d 461, 406 N.Y.S.2d 16 ; Schachnow v. Central Park Boathouse, [Sup Ct, New York County 2010]).