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Hilton v. N.Y.C. Housing Auth.

Supreme Court, Kings County, New York.
Jan 29, 2013
38 Misc. 3d 1235 (N.Y. Sup. Ct. 2013)

Opinion

No. 2161/08.

2013-01-29

Jonathan HILTON, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY and Virgo Iron Works, Inc., Defendants. New York City Housing Authority, Third–Party Plaintiff V. Barile Inc., d/b/a Barile Fire Protection, Third–Party Defendants.

Barasch, McGarry, Salzman & Penson, New York, for Plaintiff. Leahy & Johnson, P.C., New York, for Defendant.


Barasch, McGarry, Salzman & Penson, New York, for Plaintiff. Leahy & Johnson, P.C., New York, for Defendant.
Furman Kornfeld & Brennan, LLP, New York, for Third Party Defendant.

DAVID I. SCHMIDT, J.

The following papers numbered 1 to 16 read herein:

+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------------------------+----------------¦ ¦Notice of Motion/Order to Show Cause/ Petition/Cross Motion ¦1–5, 13–14 ¦ ¦and Affidavits (Affirmations) Annexed ¦ ¦ +------------------------------------------------------------+----------------¦ ¦Opposing Affidavits (Affirmations) ¦7–10, 15 ¦ +------------------------------------------------------------+----------------¦ ¦Reply Affidavits (Affirmations) ¦11–12, 16 ¦ +------------------------------------------------------------+----------------¦ ¦Affidavit (Affirmation) ¦ ¦ +------------------------------------------------------------+----------------¦ ¦Other Papers Memorandum of Law ¦6 ¦ +-----------------------------------------------------------------------------+

Upon the foregoing papers, defendant New York City Housing Authority (N.Y.CHA) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff Jonathan Hilton's complaint. Third–Party defendant V. Barile Inc., d/b/a/ Barile Fire Protection (Barile) also moves for summary judgment dismissing NYCHA's third-party complaint.

Background

On Friday, December 29, 2006, plaintiff Jonathan Hilton a New York City Fire Department Battalion Chief sustained personal injuries during the course of his employment. Plaintiff slipped and fell on the interior “C” staircase at a building located at 2945 West 23rd Street in Brooklyn, which is part of the Carey Gardens Housing Development, and is owned and operated by NYCHA. Plaintiff was descending the “C” staircase between the 3rd and 2nd floors to investigate a fire. He was wearing his full fire and protective Bunker Gear

as well as an oxygen tank and respiration system.

Bunker Gear consists of head to toe protective covering for a firefighter made of specialized materials designed to prevent ignition and deflect the passage of heat to the firefighter.

Plaintiff testified that as he was about to step off the stair landing he felt his right foot get restricted by what he believed to be a plastic shopping bag. He was able to free his foot of the bag but he states that this caused him to miss the first step as he began his descent down the stairs. He further testified that the heel of his right foot then made contact with the second step at which point he felt a crack and his foot slid off the step causing him to fall forward and down the remainder of the staircase. He sustained various injuries.

NYCHA's Motion

NYCHA moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint. NYCHA contends that the complaint should be dismissed because: the Firefighter's Rule bars the plaintiff's claims sounding in negligence; that NYCHA had no notice of the condition that allegedly caused plaintiff's accident; that plaintiff's claims under General Municipal Law § 205–a should be dismissed because the codes cited by plaintiff in his Bill of Particulars are not practically or reasonably connected to plaintiff's injuries; and that the defect that allegedly caused plaintiff's injuries was trivial and, thus, not actionable.

In opposition, plaintiff argues that there are numerous questions of fact regarding NYCHA's liability, and that it had the requisite notice of the defect that caused plaintiff's injury, which he argues, was not trivial. Additionally, plaintiff denies that his common law negligence claims are barred by the firefighter's rule as they are not asserted against his employer.

In reply, NYCHA argues that plaintiff is attempting to shift his theory of liability from one in which the plastic bag caused plaintiff to fall to one in which a defect in the stair was the cause of plaintiff's accident. Additionally, NYCHA contends that the alleged violations of various codes and laws were not a cause of plaintiff's injuries and thus his claims under GML § 205 a should be dismissed.

In support of its' summary judgment motion, NYCHA submits the affidavit of Joseph DiGregorio, the Superintendent of the Carey Gardens Housing Development building at which plaintiff was injured. Mr. DiGregorio affirms that he was responsible for supervising the janitorial and maintenance staff at the building. He reviewed the janitorial schedule log books for the time period prior to plaintiff's accident. The log reveals that the stairs in which plaintiff fell were swept and mopped the day prior and that less than two hours before the accident, one of the building's caretakers, Ron Padilla, conducted a walk down inspection of all of the stairs in the building during which any debris present would have been removed.

NYCHA also submits an expert affidavit from Mark I. Marpet, PhD., P.E., a mechanical engineer. Marpet states that he reviewed plaintiff's notice of claim and complaint; NYCHA's answer; plaintiff's original and supplemental Bills of Particulars, the Hearing Transcripts and the Examination Before Trial transcript of plaintiff, the EBT transcripts of NYCHA employees Felix Bruno and Joseph DiGregorio, as well as photographs of the stairwell where plaintiff fell, plaintiff's medical records and reports and the affidavit of plaintiff's expert Jeffrey Ketchman.

Marpet opines that plaintiff fell because his foot got stuck in the bag, and while attempting to dislodge the bag, his foot propelled forward causing it to miss the first step and have the heel of his foot come in contact with the second step. Marpet opines that plaintiff was falling ballistically down the stairs and was thus, not in control of his movement. He opines that plaintiff's claim that rust on the stairs somehow caused his fall is not supported by any scientific evidence, especially in light of the fact that plaintiff was wearing full firefighter gear and carrying equipment on his back, and is thus, mere speculation.

Marpet further opines that the rust spot on the second step was not a cause of, nor did it have any practical or reasonable relationship to, plaintiff's fall since he had already missed the first step and overstepped the second and thus, any flaking paint or rust on the step would have no practical or reasonable relation to the fall that was already in progress. Rather, he opines that plaintiff's accident occurred due to his out of control descent down the stairwell perhaps related to his initial contact with the plastic bag while wearing full Bunker Gear and equipment on his back weighing approximately 35 pounds, and that the removal of any paint or rust was the result, rather than the cause, of the fall.

Finally, Marpet addresses the various codes that plaintiff claims were violated and uses to support his claim under GML § 205–a. Marpet opines that the code and statutory provisions cited by plaintiff and neither practically nor reasonably related to plaintiff's alleged accident.

Plaintiff opposes NYCHA's motion arguing that triable issues of fact exist that preclude summary judgment in NYCHA's favor. Specifically, plaintiff points to the deposition testimony of Frank Bruno, a NYCHA superintendent, who testified that more than three years prior to the accident, he had requested that the stairway, including all steps, be replaced. Further, he points to a report prepared by HAK Engineers, P.C, which was commissioned by NYCHA to inspect the stairways. The firm concluded that the stairs in Staircase C at which plaintiff fell were generally in poor condition and needed immediate repair. The report further concluded that there was a great deal of corrosion present at Staircase C. Plaintiff notes that this report was prepared in September 2003, more than three years prior to his accident.

In further support of his opposition, plaintiff submits the affidavit of his expert Jeffrey Ketchman, P.E. Mr. Ketchman states that his opinions and analysis are based upon his inspection of the stairs where plaintiff was injured, as well as his review of the deposition and 50–h hearing transcript of the plaintiff, the deposition transcripts of Joseph DiGregorio and Felix Bruno, and the engineering report prepared by Haks Engineers, P.C.

Ketchman states that he observed and photographed the stairs at which plaintiff fell and attaches the photos to his affidavit. He opines that

the tread surface on which he [plaintiff] placed his heel dislodged, which caused the fractured piece and Chief Hilton's [plaintiff] heel to slip off the tread. The dislodged piece acted like a skid for his heel. That this could readily happen on these rusted stairs is illustrated by looking at another area of the stairs, where a piece of tread surface had corroded and detached. The piece was found resting in place on the step (Photo 41). But when pushed laterally, it dislodged. (Photo 42) (referring to the photos attached to his affidavit).

Ketchman opines that plaintiff was not ballistic when he fell and was not in a free fall but, rather had made a point of contact with the stair which was corroded and that is what caused plaintiff's fall. He further states that the defect was not trivial and was readily observable as the step upon which plaintiff fell was severely corroded. Moreover, he points out that this condition was known to NYCHA based upon the findings in the Haks Engineering report, which was commissioned by NYCHA. Ketchman observed that there were various pipes that were leaking and depositing water on the stairway landings which would have contributed to the corrosion of the stairs and notes that these leaks had been known to NYCHA inasmuch as the 2003 Haks Report documented that water activity was contributing to the corrosion of the stairway and recommended replacement of the stairs in question.

Finally, Ketchman opines that the failure to adequately maintain the stairway, and in particular the step that caused plaintiff's accident was in violation of Administrative Code §§ 27–127; 27–128, 27–2005 and Multiple Dwelling Law §§ 52 and 78, all of which basically require that buildings and stairs contained therein be maintained and kept in good repair. Ketchman concludes that had the tread not broken plaintiff would not have fallen down the stairs. Thus, Ketchman concluded the stairways were not adequately maintained as required by the cited codes and statutes and, thus, said codes and statutes were violated.

In support of its reply papers, NYCHA submits a reply affidavit from Marpet in which he addresses opinions asserted by Ketchman in support of plaintiff's opposition. Marpet opines that it is speculative for Ketchman to assert that flaking paint caused plaintiff's accident because no one saw either, before or after the accident, any disintegrated step or paint. Further he argues that Ketchman fails to explain how the loose paint never dislodged while the stair was being used as an active stairway and only occurred when plaintiff's foot hit it, although Ketchman opined that plaintiff was not falling balistically as asserted by Marpet, but rather was descending the stairs in control of his motion. Finally, Marpet repeats his opinion that the codes cited by plaintiff and his expert as having been violated are of no import inasmuch as the code and stutory provisions cited by plaintiff are neither practically, nor reasonably, related to plaintiff's accident. Marpet maintains that there is no scientific proof to support Ketchman's opinion that the friction of the corroded steel is less than that of a painted surface causing him to fall. Marpet opines that there is no support for Ketchman's opinion that the rust on the stairs caused plaintiff's fall and that he was having a controlled descent down the stairs until he encountered the rust spot, rather Marpet opines that the snagging of plaintiff's foot on the bag caused him to trip down the stairs in an uncontrolled manner which was not the result of any actions or inaction on the part of NYCHA.

Discussion

“General Obligations Law § 11–106 largely abolished the former so-called “firefighter's rule” by giving firefighters a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers” (Alcalde v. Riley, 73 AD3d 1101, 1103 [2010];Galapo v. City of New York, 95 N.Y.2d 568, 573 [2000]; see Brennan v. New York City Hous. Auth., 302 A.D.2d 483, 484 [2003];Gibbons v. Ostrow, 234 A.D.2d 415, 416 [1996] ). Inasmuch as plaintiff has asserted his claims against NYCHA and not against his employer said claims are not barred by the firefighter's rule.

General Municipal Law § 205–a provides a right of action for firefighters where the negligence of any person in failing to comply with the requirements of any of the statutes, ordinances, or rules of the federal, state, or local governments directly or indirectly caused the firefighter's injury or death during the discharge of his or her duty ( see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 77 [2003];Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 441 [1995] ). A firefighter injured in the line of duty seeking to recover under General Municipal Law § 205–a must “identify a statute or ordinance with which the defendant failed to comply,” and must “set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused” his or her injuries (Link v. City of New York, 34 AD3d 757, 758 [2006] [internal quotation marks omitted]; see Giuffrida, 100 N.Y.2d at 77). “Proving that the defendant's violation was an ‘indirect cause’ does not require the same amount of proof as proximate cause in common-law negligence, but requires a practical or reasonable connection between the statutory or regulatory violation and the injury” (Aldrich v. Sampier, 2 AD3d 1101, 1103 [2003];see Giuffrida, 100 N.Y.2d at 81;Williams v. City of New York, 256 A.D.2d 332 [1998] ).

In support of his GML 205–a cause of action, plaintiff claims that NYCHA violated New York State Multiple Dwelling Law §§ 52(1) and 78(1); Property Maintenance Code of New York State Section 304.4; New York City Administrative Code 27–127 and 27–128; New York City Housing Maintenance Code § 27–006; New York City Building Code § 27–275(J) and Labor Law § 27–A (3)(A)(1).

Multiple Dwelling Law § 52 provides in pertinent part that “every multiple dwelling erected after April eighteenth, nineteen hundred twenty-nine, every interior stair, fire-stair and fire-tower and every exterior stair in connection with any dwelling altered or erected after January first, nineteen hundred fifty-one, shall be ... kept in good repair and free from any encumbrance ...” Multiple Dwelling Code § 78 provides in pertinent part that “[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section ... Any such persons who shall wilfully violate or assist in violating any provision of this section shall also jointly and severally be subject to the civil penalties provided in section three hundred four.”

NYCHA's expert opines that these are general statutes and that plaintiff has no scientific basis to claim that the conditions in stair hall C at the time of the accident arose from a violation of either Multiple Dwelling Law §§ 52(1) or 78(1). He further opines that the rust spot and any flaking did not cause plaintiff's fall and was not reasonably related to plaintiff's alleged injuries.

New York City Administrative Code § 27–127 and 27–128 have since been repealed but were in effect on the date of plaintiff's accident. Section 27–127 provided in pertinent part that “[a]ll buildings and all parts thereof shall be maintained in a safe condition ...” Section 27–128 provides that “[t]he owner shall be responsible at all times for the safe maintenance of the buildings and its facilities ...” Marpet opines that these were also general codes reflecting only a general duty to maintain premises in a safe condition and opines that plaintiff's accident was not due to any lack of safety in stairway C but, rather, was due to the transient condition of the plastic shopping bag on the third floor landing, and thus these codes are not applicable.

Section 27–2005 (a) of the New York City Housing Maintenance Code provides that “[t]he owner of a multiple dwelling shall keep the premises in good repair” Marpet does not address this code section. However, Marpet basically opines that all of the sections cited by plaintiff are not relevant to the matter or are not indicative of a breach of code and that none of these codes are practically or reasonably related to plaintiff's accident or alleged injuries.

Plaintiff, through the submission of the expert affidavit of Jeffrey Ketchman, P.E. raises a question of fact regarding whether the various codes cited by plaintiff were violated and thus, whether he has raised a valid claim under GML–205–a. Ketchman opines, based on his observance of the stairs in question, as well as various other documents, including the Haks Report, that NYCHA's failure to maintain the stairwell is a safe condition violated all of the codes and statutes cited by plaintiff and that plaintiff's accident occurred as a direct result of the corroded condition of the stair.

While recovery under General Municipal Law § 205–a does not require proof of notice of an unsafe condition, a showing of actual or constructive notice of the particular defect on the premises causing injury is necessary to a claim sounding in common-law negligence ( see Alcalde v. Riley, 73 AD3d 1101, 1104 [2010];Terranova v. New York City Tr. Auth., 49 AD3d 10, 17 [2007];Lustenring v. 98–100 Realty, 1 AD3d 574, 577 [2003];McCullagh v. McJunkin, 240 A.D.2d 713, 714 [1997];Lusenskas v. Axelrod, 183 A.D.2d 244, 249 [1992] ). Here, in opposition to NYCHA's prima facie showing that it neither created, nor had actual or constructive notice of, any dangerous condition on the subject premises that resulted in the plaintiff's injuries, the plaintiff raised a triable issue of fact through the expert affidavit of Ketchman. Ketchman stated in his affidavit that plaintiff's accident occurred as a direct result of the corroded tread on the stair. He stated that when plaintiff's heel “landed on the tread, the severely corroded surface fractured, and acted like a skid, causing his foot to slide off the step, and causing him to fall down the stairs. Had the tread not broken, Chief Hilton would not have fallen.” Moreover, the plaintiff points to the findings contained in the Haks Engineering Report commissioned by NYCHA which Ketchman notes documented leaks that were contributing to the corrosion in the stairway in 2003, three years prior to plaintiff's accident and recommended replacement of all of the C staircases due to the extensive corrosion present. Thus, he opines, NYCHA had actual notice of the defective condition of the stairs as early as three years prior to plaintiff's accident. Moreover, the submission of the deposition testimony of Felix Bruno, NYCHA's resident superintendent for the Carey Gardens Houses from 2001 through February 2004, wherein he testified to the fact that he had put in a work order request, dated October 29, 2003, “requesting the replacement of the steps, nosing and platform.” He testified that this request was made for all of the C stairwells in each of the three buildings comprising the Carey Gardens complex because the metal steps were deteriorating. This too, raises a question of fact regarding NYCHA's actual notice of the defective condition of the stairs at which plaintiff fell precluding a grant of summary judgment in NYCHA's favor.

Based upon the foregoing, NYCHA's motion for summary judgment dismissing plaintiff's claims is denied.

Barile's Motion

Barile moves for summary judgment dismissing NYCHA's third-party complaint which seeks common law and contractual indemnification and contribution as well as that Barile breached its contract by failing to procure insurance and name NYCHA as an additional insured. NYCHA only opposes that branch of Barile's motion insofar as it seeks too dismiss NYCHA's cause of action for failing to procure Insurance naming NYCHA as an additional insured.

Barile argues that NYCHA's claim for common law indemnification must be dismissed because it cannot establish that it was free from negligence. A party seeking to establish a claim for common law indemnification, must demonstrate not only that it was not guilty of any negligence beyond any statutory liability and that the proposed indemnitor's negligence contributed to the causation of the accident ( see Correia v. Professional Data Management, Inc., 259 A.D.2d 60 [1999];Kagan v. Jacobs, 260 A.D.2d 442 [1999] ). In the instant matter no such showing has been made and a review of the relevant pleadings reveals that the plaintiff's complaint is predicated upon negligence and not that of strict or vicarious liability. Accordingly, that branch of Barile's motion seeking summary judgment dismissing NYCHA's claim for common law indemnification is granted. The court notes that NYCHA has not opposed this branch of Barile's motion.

Next Barile argues that NYCHA's contractual indemnification claim must be dismissed because the contracts between these entities do not provide for indemnification and NYCHA has not demonstrated that it was free from negligence. In support of this position, Barile submits a copy of the contract entered into between these parties. Additionally, Barile argues that NYCHA's third-party complaint alleges that Barile contracted to provide indemnification from claims “arising out of the performance of third-party defendants' contractual obligations.” Barile points out that its contractual obligations involved standpipe inspection and that it was in no way responsible for maintaining the stairway in a safe condition free from debris and corrosion.

Contractual indemnification involves the parties agreeing to shift liability from the owner or contractor to the subcontractor that proximately caused plaintiff's injuries through its negligence. An indemnification clause in a contract can be enforced if it is established that the party seeking enforcement was not negligent and was only statutorily liable, or did not supervise or control the work being performed (Amato v. Rock–McGraw, Inc., 297 A.D.2d 217 [2002],Uluturk v. City of New York, 298 A.D.2d 233 [2002];Colozzo v. National Center Foundation, 30 AD3d 251 [2006] ). Here NYCHA has failed to demonstrate that it was free from negligence and importantly does not even oppose this branch of Barile's motion. Accordingly, that branch of Barile's motion seeking summary judgment dismissing NYCHA's claim for contractual indemnification is granted.

Barile also contends that NYCHA's claim for contribution must be dismissed because there is no evidence that Barile owed it a duty independent of its contractual obligations or that it owed a duty to plaintiff and that the breach of such duty contributed to his injuries. To sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries (Guerra v. St. Catherine of Sienna, 79 AD3d 808, 809 [2010];see Baratta v. Home Depot USA, 303 A.D.2d 434, 435 [2003];see also Roach v. AVR Realty Co., LLC, 41 AD3d 821, 824 [2007];Torchio v. New York City Hous. Auth., 40 AD3d 970, 971 [2007] ). Here NYCHA failed to demonstrate that Barile either owed it a duty of reasonable care independent of Barile's contractual obligations, or that Barile owed a duty of care to the plaintiff ( seeRoach, 41 AD3d at 824;Torchio, 40 AD3d at 971). Again, NYCHA does not oppose this branch of Barile's motion seeking to dismiss NYCHA's claim for contribution and, thus it is granted.

Finally, Barile argues that NYCHA's cause of action for breach of contract for failure to procure insurance must be dismissed since Barile procured the requisite insurance coverage. The contract required the purchase of a comprehensive general public liability insurance policy with coverage of $1 million per occurrence or $2 million in the aggregate. NYCHA opposes this branch of the motion arguing that Barile fails to submit any document or evidence in admissible form to support its contention that it procured the requisite insurance. Moreover, NYCHA contends that Barile fails to submit an affidavit from a person with knowledge to attest that the coverage was purchased naming NYCHA as an additional insured.

However, Barile submits a copy of the insurance policy it procured which states the requisite policy limits and includes an endorsement entitled “Additional Insured–Owners, Lessees, or Contractors–Scheduled Person or Organization” which lists the name of the entity which is additionally insured as “Blanket where required by contract.” Barile argues that by virtue of the phrase “blanket where required by contract” as included in the section for naming additional insureds within the policy, Barile fulfilled its contractual obligation ( see Kassis v. Ohio Cas. Ins. Co., 12 NY3d 595 [2009] [involving a tenant's insurance policy that provided automatic additional insured coverage to landlord through the lease agreement]; see also Hunt v. Ciminelli–Cowper Co., Inc., 93 AD3d 1152, 1155 [2012] [involving an insurance policy that included an endorsement which provided that the section identifying who is an insured under the policy “is amended to include any person or organization you are required to include as an additional insured on this policy by a written contract or written agreement in effect during this policy period and executed prior to the occurrence of any loss”] ). Similar to the language in the insurance policy involved in the Hunt case, the insurance policy in the instant case provided for blanket coverage to those entities that Barile was obligated to insure by virtue of a contract entered into between such parties, which would include NYCHA. Accordingly, that branch of Barile's motion seeking summary judgment dismissing NYCHA's claim for breach of contract to procure insurance is granted and said claim is dismissed.

Conclusion

NYCHA's motion seeking summary judgment in its favor dismissing plaintiff's claims is denied in its entirety. Barile's motion seeking summary judgment dismissing NYCHA's third party complaint which included claims for common law and contractual indemnification and contribution as well as breach of contract for failure to procure insurance and name NYCHA as an additional insured is granted in its entirety.

The foregoing constitutes the decision and order of the court.




Summaries of

Hilton v. N.Y.C. Housing Auth.

Supreme Court, Kings County, New York.
Jan 29, 2013
38 Misc. 3d 1235 (N.Y. Sup. Ct. 2013)
Case details for

Hilton v. N.Y.C. Housing Auth.

Case Details

Full title:Jonathan HILTON, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY and Virgo…

Court:Supreme Court, Kings County, New York.

Date published: Jan 29, 2013

Citations

38 Misc. 3d 1235 (N.Y. Sup. Ct. 2013)
2013 N.Y. Slip Op. 50390
969 N.Y.S.2d 803