
    Dominick A. Sapienza, as Administrator of the Estate of James A. Sapienza, Deceased, Respondent, v County of Erie, Defendant, and American National Red Cross et al., Appellants.
    (Appeal No. 1.)
    [705 NYS2d 455]
   —Order insofar as appealed from unanimously reversed on the law without costs, motion granted and amended complaint and cross claim against defendants American National Red Cross and Greater Buffalo Chapter of American National Red Cross dismissed. Memorandum: This action stems from the death of plaintiffs decedent after he received blood that was collected and distributed by defendants American National Red Cross and Greater Buffalo Chapter of the American National Red Cross (collectively Red Cross defendants). Defendant County of Erie (County) received the blood from the Red Cross defendants and administered the blood transfusion to decedent at the Erie County Medical Center (ECMC). Plaintiff, as administrator of decedent’s estate, commenced this action alleging negligence causes of action against the Red Cross defendants and negligence and medical malpractice causes of action against the County. The Red Cross defendants moved for summary judgment dismissing the amended complaint and cross claim, and the County moved for summary judgment dismissing the amended complaint.

Supreme Court erred in denying the motion of the Red Cross defendants. For purposes of their motion, the Red Cross defendants accepted as true that decedent received blood that was collected by them, that the blood decedent received was contaminated with enterobacter cloacae bacteria, and that the bacteria caused decedent’s death. In support of their motion, the Red Cross defendants submitted the affidavits of their medical director and a medical expert. Those physicians opined that, based upon their review of the deposition transcripts and the records kept by the Red Cross defendants, including the blood donation records and blood testing records, the Red Cross defendants properly collected, stored, tested and transported the blood received by decedent. The Red Cross defendants thereby established their entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562), and in opposition, plaintiff failed to raise a triable issue of fact.

Plaintiff may not rely on the doctrine of res ipsa loquitur to defeat the motion of the Red Cross defendants. Application of that doctrine is appropriate “only when the plaintiff can establish three elements: ‘(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Prosser, Torts § 39, at 218 [3d ed]; see, Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226)” (Ebanks v New York City Tr. Auth., 70 NY2d 621, 623). Here, negligence is not the only inference that may be drawn from the circumstances of this case; the bacteria may have been present in the blood donor and not detected by the Red Cross defendants without any negligence on their part. Furthermore, the contaminated blood was not in the exclusive control of the Red Cross defendants. We thus reverse the order in appeal No. 1 insofar as appealed from, grant the motion of the Red Cross defendants and dismiss the amended complaint and cross claim against them.

The court, however, properly denied the motion of the County. In support thereof, the County submitted only the conclusory affidavit of an ECMC nurse who averred that it was standard hospital policy and procedure to follow -ECMC’s guidelines for the safe transfusion of blood. Thus, the County failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., supra, at 853; Zuckerman v City of New York, supra, at 562). (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Pine, Hayes and Hurlbutt, JJ.  