Shela Ashkenazi, Appellant, v. City of New York et al., Respondents

Shela Ashkenazi, Appellant, v City of New York et al., Respondents. [656 NYS2d 641] [MAJORITY] Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered October 11, 1996, which denied plaintiff’s motion for partial summary judgment on the issue of liability, and granted defendants’ cross motion to vacate an admission to a notice to admit, unanimously affirmed, without costs. The motion court, in considering plaintiffs motion for partial summary judgment, properly refused to apply the doctrine of res ipsa loquitur in that it has not been established that the tile that struck plaintiff in the head, as she was walking down a street in front of defendants’ school building, came from the school building, and, assuming it did, that defendants had exclusive control over it. In addition, the purported admission, by way of nonresponse to plaintiffs notice to admit, that the tile was dropped from one of two windows of the school building was properly vacated as bearing upon an ultimate issue that should more appropriately be explored through other disclosure devices (see, Taylor v Blair, 116 AD2d 204, 206). Concur—Sullivan, J. P., Milonas, Nardelli, Williams and Mazzarelli, JJ.