¶1concurs in part and dissents in part in a memorandum as follows: While the majority is correct in affirming the denial of summary judgment, it misunderstands the doctrine and function of res ipso loquitur. The doctrine is well analyzed by the Court of Appeals in Dermatossian v New York City Tr. Auth. (67 NY2d 219, 226-228).
¶2In Dermatossian (supra, at 228), it was obvious that the grab handle on the bus "was continuously available for use by defendant’s passengers”. Had that not been the case, the *289result could have allowed an inference as per Bressler v New York R. T. Corp. (277 NY 200). In the latter case, the plaintiff was injured, as she sat in a subway train, by a pane of glass which shattered. By virtue of the res ipso loquitur doctrine, a prima facie case of negligence was made out and the defense had to meet the "presumption” arising from the accident. It offered the defense that the glass was broken by boys on the outside throwing stones.
¶3In the case at bar, all that the plaintiff did was walk on the sidewalk, and the allegation is that the glass storm window which hit him came from an apartment in a building owned by one defendant and leased by the other. Together they have the real property fee.
¶4The Bresslercase (supra) is right on point and is not rendered distinguishable by Dermatossian (supra).