dissent in a memorandum by Sullivan, J., as follows: Plaintiff, Vilma Burgess, an employee of Morgan Guaranty, suffered a herniated disc when she stumbled and fell as she left an automatic elevator which had stopped four or five inches above floor level at Morgan’s 15 Broad Street building. The jury returned a verdict in her favor in the sum of $823,240, and awarded her husband $194,240 for loss of services. The court submitted the case to the jury on a theory of negligence and charged the doctrine of res ipsa loquitur. Otis Elevator, which, pursuant to contract with Morgan, serviced and maintained the building’s elevators, specifically objected to the res ipsa charge, as did Morgan. Liability was apportioned at 1V2% against plaintiff and her husband, and 92ti% against Otis. On Otis’s third-party claim the jury apportioned 25% of the liability against Morgan. Trial Term denied Otis’ motion to set aside the verdict against it, finding the verdict "in accord with the testimony and not contrary to the weight of the evidence”, but did set aside the verdict on its third-party claim and dismissed the third-party complaint.
The evidence establishes that plaintiff entered the elevator without difficulty on the 19th floor to descend to the 18th floor. Frank Teague, a fellow Morgan employee, had entered the elevator on the 21st floor, again without difficulty, and was on the elevator when plaintiff entered. At the 18th floor the elevator "misleveled”, stopping about "two or four inches” above the floor. As a result plaintiff stumbled as she exited and fell to the floor.
Otis, which under its service contract was responsible for the inspection of the elevators, had a mechanic and helper on the premises during working hours, and was subject to call when the mechanic was off duty. In his deposition read in evidence the building manager testified that during his 12 years in the building there had been occasional complaints of misleveling, but his testimony did not reveal any problems with the particular elevator involved in this incident. In another deposition read at trial the resident elevator mechanic testified that during the four years he had been tending the elevators at 15 Broad Street prior to the accident he could not recall any misleveling problem with the elevator in question. He also testified that he did not repair the elevator after the accident, and, indeed, first learned of the accident several years later. He testified that the acceptable tolerance for misleveling was ¼ inch, and that adjustments would be made if the misleveling exceeded that measurement. He also *789stated that every week he would inspect the mechanical devices in at least one elevator bank, ride the elevators, and confer with the starter on the ground floor.
Plaintiffs’ expert testified that the acceptable tolerance for misleveling was Vi inch, and while he could not pinpoint the cause of the misleveling at the time of the accident, he did recite several possible causes, including a defective relay switch, a defective weight load regulator, a burned-out contact, and burned or loose wires. Plaintiffs’ expert also testified that a misleveling problem of the kind that occurred here is not one that takes place spontaneously. Notwithstanding his testimony that he could not identify the cause of the misleveling, he opined that reasonable inspection would have discovered the condition. He further found Otis’ maintenance procedures deficient.
Despite the absence of any evidence that Otis had ever received a complaint about the elevator in question so as to put it on notice that the elevator was malfunctioning, or of any direct evidence that the elevator had, in fact, ever misleveled prior to the accident, I believe, on the basis of the testimony of plaintiff’s expert, that sufficient circumstantial evidence of negligence was shown to warrant submission of the case to the jury. This was not a case, however, for application of the res ipsa doctrine. In this connection the jury was specifically charged that, as in the case of a falling billboard, where the inference of negligence could be drawn against its owner, the inference of negligence could be drawn against Otis. This was error since Otis could not be found liable simply because the elevator misleveled.
It is well settled that the mere happening of an accident and resultant injury does not permit the inference of negligence. (Eaton v New York Cent. & Hudson Riv. R. R. Co., 195 NY 267.) While a plaintiff may, in the absence of direct evidence of negligence, establish circumstances which justify the inference of negligence, "the circumstances must be such as to indicate negligence, and there must be more than mere speculation, guess or surmise [citations omitted].” (Manley v New York Tel. Co., 303 NY 18, 25.) The doctrine of res ipsa loquitur is but a species of the rule of circumstantial evidence that permits a jury, given evidence of sufficient probative weight, to infer negligence where no direct evidence of negligence exists. (Cooke v Bernstein, 45 AD2d 497, 499, citing Zaninovich v American Airlines, 26 AD2d 155, 157.) The conditions necessary for the applicability of res ipsa loquitur are: " '(1) the event must be of a kind which ordinarily does *790not 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; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” (Corcoran v Banner Super Mkt., 19 NY2d 425, 430, citing Prosser, Torts § 39, at 218 [3d ed].) The law is clear that "evidence showing a probability that the accident could not have occurred in the absence of negligence must be adduced before the res ipsa loquitur doctrine will be applied” (Rodriguez v State of New York, 50 AD2d 985, 986; citations omitted).
Thus, plaintiff was not entitled to a res ipsa charge merely by virtue of the elevator’s misleveling. While the rapid fall of a elevator several floors when the defendant was aware of the need for repair of the speed governor (see, e.g., Mallor v Wolk Props., 63 Misc 2d 187) is an appropriate case for the application of res ipsa loquitur, the misleveling here is not. Also inapposite is Weeden v Armor Elevator Co. (97 AD2d 197), upon which plaintiff relies. There, the elevator passed the desired floor, ascended to the top of the shaft, hit something, and started shaking. The court found res ipsa applicable because "the erratic behavior of elevator number one was neither an ordinary nor a natural experience * * * but, rather * * * constituted an event which would not ordinarily occur were due care exercised in that vehicle’s manufacture and maintenance” supra, p 205; citations omitted). The notion, implicit in Trial Term’s charge on res ipsa, that the jury could find that the elevator would not have misleveled on one occasion but for negligence on the part of the maintenance and service contractor, requires a perfection in machinery that cannot be assured even by the wonders of the technological age. Here, the elevator had only seconds before leveled properly at both the 21st and 19th floors. Thus, while Otis may be held liable in negligence if it was on notice of a prior misleveling of the type here involved—and constructive notice of such a condition was circumstantially established by plaintiff’s expert—absent acceptance of such proof it cannot be found to be negligent for whatever happened to the mechanism in the very short interval before plaintiff entered the elevator. The court’s res ipsa charge permitted just such a finding.
In the principal case upon which plaintiff relies, Rogers v Dorchester Assoc. (32 NY2d 553), the court noted that the door which caused the accident "had malfunctioned before in a way directly or indirectly related to the accident.” (supra, p 561.) *791Thus, the inference of negligence arose from more than the occurrence of an accident.
Since the facts did not warrant admission of the case to the jury on a theory of res ipsa loquitur and timely objection was taken, the verdict on negligence, which was undifferentiated, cannot stand. (Toomey v New York City Tr. Auth., 10 AD2d 728, affd 8 NY2d 970.) In such circumstances, whether the jury’s finding was based on a showing of negligence by circumstantial evidence, as to which there is factual support in the record, or on the application of res ipsa, as to which there is not, cannot be determined.
Accordingly, the judgment should be reversed, and the matter remanded for a new trial.