On August 27, 2015, Theodore Comando went to a  deli on the Upper West Side, owned by C.P. Yang Corp, to purchase a cup of coffee. He walked to the counter and lifted a coffee pot from the coffee burner. While lifting the pot, the bottom of the pot fell out, causing his legs and feet to be scalded with second degree burns.

Countering Comando’s version of the facts, the owner of the store, Keumyul Yang, stated in deposition testimony that he was not present during the incident but was told by his employee, Domingo Ogacion, that two coffee pots were involved, and that Comando was holding the right coffee pot and hit the pot into the left coffee pot, causing a hole in the side of the coffee pot that he was holding. However, when was deposed separately, Ogacion stated that Comando was holding the left coffee pot and the bottom fell out.

The parties also disputed what time the incident happened. Ogacion stated that the accident must have occurred before his shift ended at 7:00 a.m. However, the ambulance call and emergency room records indicated the accident took place around 9:00 a.m.

No video footage of the incident existed, as the security footage of the day of the incident was covered over before a request for the footage made. The Court previously entered an Order granting an adverse inference to be used at trial due to Yang’s failure to preserve the video evidence.

Yang moved for summary judgment, arguing that he did not cause or create a hazardous condition, nor did he have actual or constructive notice of such condition. And argued that there was no evidence the coffee pot was defective as it had no cracks or other visible defects, and that no prior complaints had been rendered regarding the coffee pot.

Yang further contended there was no duty to warn of the coffee pot since there was no sign it was inherently dangerous.

Comando argued that questions of fact regarding Yang’s notice remained because the testimony only related to the general customs and procedures for the coffee pot, and that Yang may be liable under the doctrine of res ipsa loquitur. Comando contended that, in any event, the differing accounts of the accident and Yang’s failure to preserve the video evidence rendered summary judgment improper.

The function of a court in reviewing a motion for summary judgment is issue finding, not issue determination. And if any genuine issue of material fact is found to exist, summary judgment must be denied. Where credibility determinations are required, summary judgment must be denied. Thus, on a motion for summary judgment, the court is not to determine which party presents the more credible argument, but whether there exists a factual issue, or if arguably there is a genuine issue of fact.

The Court found summary judgment to be an improper remedy for Yang as nearly all the facts of the case were in question. The parties offered drastically different accounts of how the accident happened. Comando argued that the Court’s prior granting of an adverse inference to be used at trial was sufficient to defeat the summary judgment motion in and of itself. However, the grant of an adverse inference alone did not automatically defeat summary judgment, as it did not shift Comando’s burden of proof to demonstrate an essential elements of his case. But the fact that Yang did not preserve video evidence of the accident meant the case now turned on the credibility and evidence offered by the parties to support their differing versions of events. It was the role of the jury, not the judge, to assess the credibility of the arguments presented. Therefore, while the adverse inference alone did not render summary judgment inapplicable to Yang, the lack of video footage or any external evidence beyond conflicting deposition testimony meant that summary judgment could not be rendered.

Yang also did not meet his burden regarding notice of an issue with the coffee pot. The burden was not on Comando to show that Yang had notice, but rather on Yang to prove that it never had any notice. A lack of prior complaints alone was not sufficient. Therefore, the fact that no customers complained about the coffee pot before this incident was not dispositive. Yang did not provide any documentation showing the coffee pot was cleaned or inspected prior to the accident, but instead only offered testimony regarding general customs and procedures. A lack of specific evidence and personal knowledge regarding the alleged hazard meant that Yang did not establish prima facie entitlement to summary judgment. Material questions of fact existed as to whether Yang was negligent in the ownership, management and operation of the store, and the condition of the coffee pot (or pots) involved in the accident.

The Court separately addressed Comando’s argument that the doctrine of res ipsa loquitur applied  to his accident. Under the doctrine of res ipsa loquitur, the event must be of a kind that does not ordinarily occur in the absence of someone’s negligence; (2) it must be caused by an instrumentality within the exclusive control of the defendant; and (3) the plaintiff must not have effected the happening of the event by any voluntary action. The doctrine applies when a plaintiff to whom the defendant owes a duty of care has been injured but is not in a position to prove directly what actually happened or that a specific act of the defendant was negligent.

The Court found that the doctrine was not applicable because Yang challenged the manner in which Plaintiff said the accident happened, and therefore it could not be said with certainty that the event was of a kind which ordinarily does not occur in the absence of someone’s negligence. If the accident occurred in the way Yang claimed it did, res ipsa loquitur also would not apply as there was possibly voluntary contribution to the accident by Comando. Furthermore, there was a question of fact as to whether the coffee pot was under Yang’s exclusive control, as customers in the store had access to the pot and used it to pour themselves coffee. While there were several material questions of fact as to how this accident occurred, there was also  a question of fact as to whether res ipsa loquitur was applicable.

Because there were conflicting accounts from parties regarding the circumstances of the accident, the Court found summary judgment premature and denied Yang’s motion.