Opinion
302377/09
07-06-2015
Dana C. Bolte and Linda Bolte, Plaintiff(s), v. The City of New York, NHS Community Development Corp., Central Development Corp., Catherine Stovall, Ashart Majid and Luis Rojas, Defendant(s).
Counsel for plaintiffs: Sullivan Papain Block McGrath & Cannavo, PC Counsel for the City: New York City Law Department Counsel for NHS: Baary, McTiernan & Moore, PC Counsel for Central: Ahmuty, Demers & McManus Counsel for Rojas: Penino & Moynihan, LLP Counsel for Danois: Law Office of Lori D. Fishman
Counsel for plaintiffs: Sullivan Papain Block McGrath & Cannavo, PC
Counsel for the City: New York City Law Department
Counsel for NHS: Baary, McTiernan & Moore, PC
Counsel for Central: Ahmuty, Demers & McManus
Counsel for Rojas: Penino & Moynihan, LLP
Counsel for Danois: Law Office of Lori D. Fishman
Mitchell J. Danziger, J.
In the action premised on common law negligence and alleged violations of GML § 205-a, defendant NHS COMMUNITY DEVELOPMENT CORP. (NHS) moves seeking an order granting it summary judgment thereby dismissing the complaint and any cross-claims asserted against it on grounds that plaintiffs' common law negligence claims are barred by the firefighter rule. Additionally, NHS avers that because NHS neither owned nor controlled the premises where plaintiff DANA C. BOLTE (Dana) had his alleged accident, at the time of this accident, plaintiffs' claims pursuant to GML 205-a must also be dismissed. Plaintiffs oppose NHS' motion asserting that insofar as NHS completely rehabilitated the premises adjacent to which Dana had his accident prior to his accident, and in so doing, failed to comply with the then applicable building code, NHS is liable under the common law because GOL § 11-106 abrogated the bar against common law negligence claims against NHS. Moreover, plaintiffs argue that NHS is similarly liable pursuant to GML § 205-a because the amendment to the foregoing statute in 1996 does not preclude liability solely because the alleged tortfeasor neither owned nor controlled the premises upon which an accident occurred at the time of the same. Defendant CENTRAL DEVELOPMENT CORP. (Central) also opposes NHS' motion to the limited extent of asking this Court to deny the same if Central's motion for identical relief is denied.
Central moves seeking an order granting it summary judgment as to the complaint and all cross-claims asserted against it. Like NHS, Central contends that insofar as it neither owned nor controlled the premises upon which Dana purports to have had his accident at the time of the accident, Central cannot be liable pursuant to GML 205-a. With regard to the common law claims asserted against it, Central argues that insofar as its connection to the premises alleged was as NHS' construction contractor, it can only be liable if, inter alia, it created the condition alleged to have caused Dana's accident - here, inter alia, a parapet of insufficient heigh. Because, the work performed by Central to the parapet did not make it more dangerous, it argues that summary judgment on the common law claims asserted is, thus, warranted. Plaintiffs oppose Central's motion only to the extent it seeks summary judgment as to the claims pursuant to GML § 205-a. Specifically, plaintiffs, as averred in opposition to NHS's motion, submit that as NHS' construction contractor, Central failed to extend the height of the parapet wall near the location of Dana's accident, violating the building code, and thus, violating GML § 205-a. As asserted in opposition to the NHS' motion, plaintiffs contend that because of the amendment to GML § 205-a in 1996, that Central neither owned nor controlled the premises at issue at the time of the accident does not warrant summary judgment in its favor.
Defendant LUIS ROJAS (Rojas) moves seeking an order granting him summary judgment with respect to the complaint and all cross-claims asserted against him. With respect to the common law claims of negligence asserted against him, Rojas contends that insofar as the accident alleged did not happen on Rojas' property he cannot be liable to the plaintiffs. Moreover, with regard to the claims pursuant to GML § 205-a, Rojas contends that insofar as NHS acquired a certificate of occupancy after the rehabilitation was performed and before Rojas acquired the premises, such certificate indicates that there were no violations of the building code, and more specifically, the ones alleged by plaintiffs. Rojas also contends that summary judgment is also warranted because even if his premises was in violation of the building code provisions alleged, it is clear that those violations did not cause Dana's accident. Plaintiffs oppose Rojas' motion averring that while the instant accident did not occur on Rojas' property he is nevertheless liable under the common law because the failure to provide a parapet of adequate height created an optical illusion which caused Dana's accident. Plaintiffs also contend that insofar as the building code violations violated by Rojas caused Dana's accident Rojas is liable thereunder and the issuance of a certificate of occupancy does not diminish Rojas' liability. Central opposes Rojas' motion to the limited extent of asking this Court to deny the same if Central's motion for identical relief is denied.
Defendant THE CITY OF NEW YORK (the City) moves seeking an order granting it summary judgment on grounds that the common law claims asserted against it are absolutely barred by the firefighter rule insofar as Dana's accident arose while he was on duty and was the result of a risk inherent to his employment as a firefighter. With respect to the claims pursuant to GML § 205-a, the City asserts that summary judgment is warranted because the predicate building code violations asserted by plaintiffs do not apply to the City as it did not own the premises at the time of Dana's accident. Plaintiffs, while conceding that no liability exists against the City, nevertheless opposes the City's motion on grounds that with respect to the GML § 205-a claims, the City fails to make the appropriate arguments - namely that when it owned the premises in question the applicable building codes did not, inter alia, require a taller parapet, such that the City did not violate the the predicate statutes.
Third-party defendant DANOIS ARCHITECTS, P.C. (Danois) moves seeking an order dismissing the third-party claims asserted against it by Central for contribution and common law indemnification on grounds that it owed no duty to plaintiffs as the architect hired by NHS to create the plans followed by Central in rehabilitating the premises at issue. More specifically, Danois asserts that as a contractor hired by NHS, it can only be liable to plaintiffs and thus to Central, if Danois, inter alia, caused or created the condition alleged to have caused Dana's injuries - which Danois avers did not occur. With regard to the GML § 205-a claims, Danois asserts that it cannot be liable since the work it performed, concluded long before Dana's alleged accident, such that Danois cannot be liable. Plaintiffs oppose Danois' motion asserting that in failing to design plans that were compliant with the then applicable building code, Danois created the condition alleged to have caused Dana's accident, such that it is liable for common law negligence. With regard to the GML § 205-a claims, plaintiffs again aver that notwithstanding that Danois completed its work long before the accident alleged, because of the amendment to GML § 205-a in 1996, liability lies even if there was no ownership or control of subject premises at the time of the accident alleged. Central opposes Danois motion to the extent of having the court deny the same if it fails to grant Central's motion.
For the reasons that follow hereinafter the motions by NHS, Central, Rojas, and Danois are granted, in part, and the motion by the City is granted in its entirety.
The instant action is for alleged personal injuries sustained by Dana on February 13, 2009. The complaints allege as follows. On February 9, 2009, Dana, a firefighter employed by the City, while discharging his duties as a firefighter, fell into an open and unguarded shaft located on the roofs of premises located at 677 (677) and 679 Eagle Avenue (679), Bronx, NY. It is further alleged, in pertinent part, that at the time of the aforementioned accident, 677 was owned by Rojas and 679 was owned by defendants CATHERINE STOVALL (Stovall) and ASHART MAJID (Majid), that prior to the date of the accident, the City and NHS owned 677, who along with Central performed construction at 677. Plaintiffs allege that in failing to cover and/or erect a guard rail around the shaft, defendants were negligent, such negligence causing Dana's accident. Plaintiffs further allege that the foregoing failures also constitute violations of Sections 27-127, 7-128, 27-334, and 27-2005 the Administrative Code of the City of New York, such that defendants also violated GML § 205-a. Plaintiff LINDA BOLTE (Linda), as Dana's wife, asserts a derivative loss of consortium claim. Within its third-party complaint, Central asserts two causes of action - one for contribution and another for common law indemnification - against Danois asserting that insofar as Danois was engaged to ensure that the construction performed by Central was complaint with all relevant codes, should Central be found liable to plaintiffs, then Danois is liable to Central.
This action was commenced as two separate actions, which by this Court's order dated October 3, 2011, were consolidated under the current index number.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]).
Once a movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman, at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [Internal citations omitted]). Accordingly, generally, the opponent of a motion for summary judgment who seeks to have the court consider inadmissible evidence must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999].
Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination. Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).
Under the common law, an owner of real property is duty-bound to maintain his/her property in a reasonably safe condition (Peralta v Henriquez, 100 NY2d 139, 143 [2003]; Basso v Miller, 40 NY2d 233, 241 [1976]; Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003). Additionally, Multiple Dwelling Law § 78, a codification of the common law, also imposes a nondelegable duty upon the owner of multiple dwelling to keep the same in a reasonably safe condition ( Mas v Two Bridges Associates, 75 NY2d 680, 687 [1990]); Altz v Leiberson, 233 NY 16, 17 [1921] [Holding that Tenement House Law (predecessor to Multiple Dwelling Law § 78) required that the owner of a multiple dwelling be kept in good repair.] ; Bonifacio v 910-930 Southern Boulevard, LLC, 295 AD2d 86, 88 [1st Dept 2002]). Thus, an owner must utilize reasonable care in the maintenance of a property, such care measured by all attendant circumstances, such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk ( Peralta at 143-144; Basso at 241). Additionally, an owner of real property must warn against dangerous conditions existing on his land which are known or reasonably ascertainable through the use of reasonable and ordinary care and no such duty exists ( Cupo at 51; Orlando v Audax Construction Corp., 14 AD3d 500, 501 [2d Dept 2005]; Reuscher v Pergament Home Centers, Inc., 247 AD2d 603, 603 [2d Dept 1998]; Jackson v Supermarkets General Corporation, 214 AD2d 650, 651 [2d Dep. 1995]). However, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses a defendant need not warn of its existence ( Cupo at 51; Orlando at 501; Reuscher at 603; Jackson at 651). While the existence of an open and obvious condition negates a defendant's duty to warn of the same's existence, it does not negate a defendant's duty to abate said condition if the same is dangerous ( Westbrook v WR Activities-Cabrera Markewts, 5 AD3d 69, 73 [1st Dept 2004]; Orellana v Merola Associates, Inc., 287 AD2d 412, 413 [1st Dept 2001]). Stated differently, an open and obvious condition does not negate a defendant's duty to maintain his premises in a reasonably safe condition and instead bears on whether the plaintiff, in failing to see what was readily observable through the use of his or her senses, is comparatively negligent ( Westbrook at 73; Orellana at 413).
It is well settled there can be no liability on a claim for premises liability absent proof that a defendant actually created the dangerous condition or, alternatively, had actual or constructive notice of the same (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Bogart v F.W. Woolworth Company, 24 NY2d 936, 937 [1969]; Armstrong v Ogden Allied Facility Management Corporation, 281 AD2d 317, 317 [1st Dept 2001]; Wasserstrom v New York City Transit Authority, 267 AD2d 36, 37 [1st Dept 1999]; Allen v Pearson Publishing, 256 AD2d 528, 529 [2d Dept 1998]; Kraemer v K-Mart Corporation, 226 AD2d 590, 590 [2d Dept 1996]).
A defendant is charged with having constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). The notice required must be more than general notice of any defective condition (id. at 838; Piacquadio at 969). Instead, notice of the specific condition alleged at the specific location alleged is required and, thus, a general awareness that a dangerous condition may have existed, is insufficient to constitute notice of the particular condition alleged to have caused an accident (Piacquadio at 969). The absence of evidence demonstrating how long a condition existed prior to a plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law (Anderson v Central Valley Realty Co., 300 AD2d 422, 423 [2002]. lv denied 99 NY2d 509 [2008]; McDuffie v Fleet Fin. Group, 269 AD2d 575, 575 [2000]). Alternatively, a defendant may be charged with constructive notice of a hazardous condition if it is proven that the condition is one that recurs and about which the defendant has actual notice (Chianese v Meier, 98 NY2d 270, 278 [2002]; Uhlich v Canada Dry Bottling Co. Of NY, 305 AD2d 107, 107 [2003]). If such facts are proven, the defendant can then be charged with constructive notice of the condition's recurrence (id.; Anderson at 422).
Generally, on a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when the evidence establishes the absence of notice, actual or constructive (Hughes v Carrols Corporation, 248 AD2d 923, 924 [3d Dept 1998]; Edwards v Wal-Mart Stores, Inc., 243 AD2d 803, 803 [3d Dept 1997]; Richardson-Dorn v. Golub Corporation, 252 AD2d 790, 790 [3d Dept 1998]). If defendant meets his burden it is then incumbent on plaintiff to tender evidence indicating that defendant had actual or constructive notice (Strowman v Great Atlantic and Pacific Tea Company, Inc., 252 AD2d 384, 385 [1st Dept 1998]). In addition to the foregoing, a defendant seeking summary judgment on grounds that it had no constructive notice of a dangerous condition, specifically a transitory one, must produce "evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell" (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]; Green v Albemarle, LLC, 966, 966 [2d Dept 2013]).
Significantly, a prerequisite for the imposition of liability for a dangerous condition within, or, on real property, is a defendant's occupancy, ownership, control or special use of the premises (Balsam v Delma Engineering Corporation, 139 AD2d 292, 296-297 [1st Dept. 1998]; Hilliard v Roc-Newark Assoc., 287 AD2d 691, 693 [2d dept 2001]). Absent evidence of ownership, occupancy, control, or special use, liability cannot be imposed (Balsam at 297).
A contractor hired to perform work is generally not liable in tort to a non-contracting third-party when he/she/it breaches a contract and said breach causes injury to a third-party (Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]; Church v Callanan Industries, Inc., 99 NY2d 104, 111 [2002]; Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]; H.R. Moch Co. v Rensselaer Water Co., 247 NY 160, 164 [1928]; Bugiada v Iko, 274 AD2d 368, 369 [2d Dept 2000]). This is because, contractors are generally hired to perform work pursuant to contract and "[u]nder our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal at 139). Thus, when there is a breach, such contractors are generally only liable to the person who hired them, the promisee, and are not liable to third parties for any injuries resulting from a breach of their contractual obligation. Consequently, if a contractor is to be held liable for injury to a third-party occasioned by their work, one of three scenarios must exist. First, a contractor is liable for injury to a third-party if the putative [contractor] has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good (id. at 139, quoting, H.R. Moch, Co., at 168). Stated differently, a contractor is liable to an injured third-party when said contractor causes or creates the condition alleged to have caused injury (id. at 140; Church at 111). Second, a contractor is responsible for a non contracting third-party's injury when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform, positively and actively, causes injury (id. at 11-112; Espinal at 140; Eaves Brooks Costume Company, Inc. v. Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]; Bugiada at 369). Lastly, when the contract is comprehensive and exclusive as to maintenance, so that due to its breath the contractor displaces, and in fact assumes the owner or possessor's duty to safely maintain the premises, said contractor is liable to an injured third-party resulting from a breach of the services undertaken - such as the failure to maintain the premises in a safe condition ( Church at 112; Espinal at 140; Palka v Servicemaster Management Services Corporation, 83 NY2d 579, 589 [1994]; Bugiada at 369).
In Espinal, for example, the Court concluded that defendant, a contractor, was not liable to plaintiff for her alleged slip and fall on ice. Specifically, plaintiff slipped and fell on an icy condition, which defendant, as per a contract with the owner of the premises, was charged with abating (id. at 137-138, 142). Specifically, plaintiff alleged that the snow within the parking lot of the premises she was traversing had not been properly removed and that, thus, the contractor created the condition which caused her fall. (id.). In granting defendant's motion for summary judgment, the court reiterated the well settled rule that "[u]nder our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (id. at 138). In discussing the exceptions to the foregoing rule, the court nevertheless held that by clearing snow as the contract required, the contractor had not created a dangerous condition, and as such was not liable under plaintiff's theory that the contractor created the condition alleged (id. at 142). Further, the court held that defendant was not liable under the exclusive control exception to the general rule, since as per the contract between the contractor and the owner, the owner retained its duty to maintain and inspect the premises (id. at 141).
Similarly, in Church, the court granted a subcontractor's motion for summary judgment, after concluding that it was not liable to the plaintiff for any breaches of its contract with the State, the entity who hired the contractor. In that action, the subcontractor was hired to install guide rails along a portion of the state thruway by a contractor who was initially hired by the State (id. at 109, 114). In that case, plaintiff was an occupant of a vehicle whose driver fell asleep at the wheel, causing said vehicle to careen down an embankment accessible through an area which was slotted for guide rail installation, but upon which the subcontractor had yet to begin work (id.). The court held that the subcontractor was not liable to the plaintiff under any of the exceptions cited above (id. at 109-110). In holding for the subcontractor, the Court held that the subcontractor's failure to install guide rails at the location of the accident therein, did not cause or create a dangerous condition, since the subcontractor's failure to install guiderails thereat did not make the are therein any more dangerous than it was without the guide rails (id. at 112). Specifically, the court noted that had the subcontractor created the dangerous condition alleged, liability would have been extant but that in that case, the breach of contract consist[ed] merely in withholding a benefit where inaction is at most a refusal to become an instrument for good. [Specifically,] San Juan's [the subcontractor] failure to install the additional length of guiderail did nothing more than neglect to make the highway at Thruway milepost marker 132.7 safer—as opposed to less safe—than it was before the repaving and safety improvement project began
(id. at 112 [internal citations and quotation marks omitted]; see H.R. Moch Co. at 168 ["The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good."]; Bono v Halben's Tire City, Inc., 84 AD3d 1137, 1139 [2d Dept 2011] [Defendant automobile repair shop's failure to warn a party that his vehicle brakes could fail if he did not replace the master cylinder on his car did not constitute the launching of a force or instrument of harm.]; Altinma v East 72nd Garage Corp., 54 AD3d 978, 980 [3d Dept 2008] [a defendant's alleged negligent failure to warn the decedent's employers regarding man-lift or elevator inspection requirements amounted to a finding that the defendant merely may have failed to become an instrument for good, which was insufficient to impose a duty of care."]).
Thus, because at best, in Church the omission alleged was nonfeasance as opposed to malfeasance, which failure merely failed to make the highway safer, the court concluded that such inaction was not tantamount to causing and creating a dangerous condition (id. at 112). The court further concluded that there was no detrimental reliance by plaintiff upon the subcontractor's and that the contract between the subcontractor and the State was not one whereby the contractor assumed all safety related obligations with regard to the guiderail system so as displace the State's obligation to safely maintain the guiderails (id. at 113). More specifically, the court noted that the contract therein was not comprehensive and exclusive with respect to inspection and supervision vis a vis the installation of the guiderails, and as such, the contractor did not displace or assume the State's duty to safely maintain the guiderails (id.).
In addition to the foregoing, it has also been held that a contractor may be liable to a third party when in performing the work he was hired to perform, said contractor follows plans which are "so apparently defective, that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury" (Ryan v the Feeney and Sheehan Building Company, 239 NY 43, 46 [1929]; Diaz v Vasques, 17 AD3d 134, 135 [1st Dept 2005] ["plaintiffs failed to show that DOTs plans for the project were so apparently defective that Yonkers was put on notice of the inherent danger"]; Gee v City of New York, 304 AD2d 615, 616 [2d Dept 2003]; Pioli v Town of Kirkwood, 117 AD2d 954, 955 [3d Dept 1986]). Such exception imposes liability only if the defects were so glaring and out of the ordinary that they put the contractor on notice that the work performed by following the plans would cause injury ( Ryan at 46) The inquiry is one which focuses upon notice at the time the work was done and as such, that an expert examined the plans post construction and concluded that the plans were faulty is insufficient to impose liability upon the contractor ( Ryan at 47 ["The fact that after the accident experts on examining the plans found the supports improper and insufficient was not enough to hold the defendant liable. The defects if any should have been so glaring and out of the ordinary as to bring home to the contractor that it was doing something which would be likely to cause injury."]). Evidence that the person who hired the contractor, accepted the work, and performed inspections in connection therewith, precludes any third-party liability upon the contractor ( Gee at 616 ["Slattery demonstrated that the plans and specifications it followed were prepared by engineers of the New York State Department of Transportation (hereinafter the DOT). The DOT's signed daily inspection reports, along with its final acceptance letter of the project demonstrated that it approved Slattery's work. Slattery thereby established its entitlement to judgment as a matter of law."]).
Historically, because "firefighters were held to have assumed the risks of their profession" (Kenavan v City of New York, 70 NY2d 558, 566 [1987]), they "were denied recovery [at common law] for injuries sustained while combating fires even though the owner of the premises on which the fire occurred was negligent in creating the condition that caused the accident" (id. at 566). The court in McGee v Adams Paper & Twine Co. (26 AD2d 186 [1966], affd 20 NY2d 921 [1967]), aptly described the reasoning for this rule barring all common law negligence claims against owners of real property for injuries sustained by a firefighter in the performance of his duties, stating that
[i]t is generally agreed that the negligence of an owner, lessee or occupant of a building, in relation to the cause of a fire, shall not be accepted as a basis for liability for injury or death to a paid fireman, or to a paid underwriter fire patrolman, occurring during his performance of his duties in the fighting of the fire or the protecting of property during the fire. Firemen and fire patrolmen are bound to anticipate that many fires do start from carelessness on the part of someone; and, absent special statutory provision, liability may not be predicated on a theory that the building owner, lessee or occupant owes a duty to paid firemen or to underwriter fire patrolmen to exercise care to eliminate a need for the special services for which they are trained and paid. Once a fire starts and the firemen or fire patrolmen arrive on the scene, they assume the usual risks inherent in their work, including those arising from contact with flames or smoke, or from the collapse in the ordinary course of the fire of ceilings, walls and floors of buildings. Where liability is found, it must generally rest upon causes other than those having to do with the inception of the fire and the ordinary hazards pertinent to the fighting and the spreading of the fire and the protecting of property therefrom
(id. at 190).
The bar, of course, also precluded common law negligence claims against the municipality who employed a firefighter injured during the performance of his official duties for the aforementioned reasons (id. at 196 ["These Fire Patrolmen were bound to realize the hazards involved and had no right to assume that the Fire Department employees were under any obligation with respect to their safety other than to refrain from reckless acts or affirmative acts of carelessness directly having a tendency to cause them injury."]).
In 1988, in Santangelo v State of New York (71 NY2d 393 [1988]), the Court of Appeals extended the applicability of the then well settled common law rule that firefighters injured while fighting fires could not "recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires" (id. at 396), to police officers who were injured while performing their duties (id. at 395). Specifically, the court held that "[l]ike firefighters, police are the experts engaged, trained and compensated by the public to deal on its behalf with emergencies and hazards often created by negligence" (id. at 397), and, thus, generally cannot recover damages for negligence in the very situations that create the occasion for their services (id.). The court again noted the bar on common law negligence claims so as to preclude an action against the state, who in Santangelo, employed the plaintiff (id. at 395, 398 ["Here the anomaly of permitting recovery by police officers would be particularly evident: allowing recovery against the State for injuries incurred while apprehending an escaped mental patient would result in the payment of damages by the public for injuries sustained by the experts it employs to deal with such situations."]). In Cooper v City of New York (81 NY2d 584 [1993]), the court once again reiterated its bar against common law negligence claims by police officers against their municipal employers for injuries sustained while "performing a function endowed with the special risks inherent in the duties of a police officer ( id. at 589). The court again rationalized its holding, noting that individuals who elect to join the uniformed services do so with knowledge of the dangers attendant upon those occupations and the distinct possibility that they might be hurt in the course of their employment. It is precisely because being a police officer is so hazardous that the Legislature has provided for added benefits to those injured in the line of duty ( id . at 590 [internal quotation marks omitted)]). The court - rejecting an exception which would allow suit against a municipality for injury to an officer caused by acts of negligence separate and distinct from the circumstances requiring a police officer's presence at the scene of an accident - made clear while common law claims could not be asserted when the injuries were precipitated by "the particular dangers which police officers are expected to assume as part of their duties," even if there existed a "degree of separation between the negligent act directly causing the injury and the act which occasioned the police officer's services" ( id . at 590), common law claims could lie for injuries "sustained by police officers as a result of [the] negligence of their fellow officers during the performance of their work which are wholly unrelated to the assumed risks of police duty ( id . at 591-592).
After the holding in Kenavan, Mcgee, Santangelo, and Cooper, the legislature saw fit to partially abrogate the prior holdings in the aforementioned cases by enacting General Obligations Law § 11-106, codifying the bar against common law negligence claims against municipal employers for injuries sustained by firefighters and police officers while discharging their official duties, but allowing common law negligence suits against third parties, such as those who own real property upon which a police officer or firefighter is injured. Accordingly, GOL § 11-106, creates a right of action by a firefighter or police officer for "any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity," but bars any common law claims of negligence for such injuries against "that police officer's or firefighter's employer or co-employee" (Brady v City of New Rochelle, 296 AD2d 365, 366 [2d Dept 2002]; Melendez v City of New York, 271 AD2d 416, 417 [2d Dept 2000]).
While until the enactment of GOL § 11-106, firefighters and police officers had been precluded from asserting common law negligence claims for injuries sustained in the discharge of their official duties, firefighters and police officers were not without recourse. As the court in Mcgee noted an injured firefighter could bring an action against anyone pursuant to GML § 205-a (id. 194-195), which states, in pertinent part that
[i]n addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department.
Notably, GML § 205-a, must be construed liberally, because it was the stated intention of the Legislature to create a cause of action in cases of the prescribed violations where, given the bar on common law negligence claims, there would otherwise be no right of recovery for the injury or death of a fireman (Mcgee at 195). Thus, in creating the foregoing cause of action, "in the interests of protecting firemen against the hazards of such violations, may be considered as having intended to impose liability in any case where there is any practical or reasonable connection between a violation and the injury or death of a fireman" (id. at 195). Accordingly, to recover under the statute it is not necessary that the plaintiff show the same degree of proximate causal connection which we are accustomed to require in the field of negligence . . . [and] it has been held that a fireman is entitled to recover for injuries sustained in fighting a fire which was started as a result of a violation of a fire preventive ordinance
(id. at 195).
Not long after the holding in Santangelo, the Legislature promulgated GML § 205-e, which like GML § 205-a and the rights it conferred upon firefighters, gave a police officer identical recourse. Thus, an injured police officer could bring an action against anyone pursuant to GML § 205-e, which states, in pertinent part that
[i]n addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any police department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police.
Thus, GML § 205-e, created a statutory right of action against anyone for injures sustained by a police officer and did so "regardless of whether the injury or death [was] caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department" (Florio v City of New York, 226 AD2d 148, 148-149 [1st Dept 1996]; Sikes v Reliance Federal Savings, 234 AD2d 446, 447 [2d Dept 1996]).
The proponent of liability pursuant to GML § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter (Giuffrida v Citibank Corp., 100 NY2d 72, 79 [2003]; (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441 [1995] ["To fall within the protective scope of the statute and defeat a motion to dismiss, a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter."]; Brophy v Generoso, 137 AD2d 478, 479 [2d Dept 1988] ["We adhere to the view that a complaint in a special action based on said section 205-a must specify or identify the statutes, ordinances, rules, orders or requirements with which the defendant neglected or failed to comply; the manner in which the injuries or death complained of occurred; together with such ultimate facts as may be necessary in order that it may appear or be inferred that said neglect or failure directly or indirectly caused the injuries or death" [internal quotation marks omitted]). For purposes of liability pursuant to GML § 205-a, the predicate statute "identified must be part of a well-developed body of law and regulation" that imposes "clear legal duties or mandates the "performance or nonperformance of specific acts" ( Paolicelli v Fieldbridge Associates, LLC, 120 AD3d 643, 645 [2d Dept 2014]; Vosilla v City of New York, 77 AD3d 649, 650 [2d Dept 2011]).
Similarly, liability under GML § 205-e requires that a plaintiff identify the particular statute or ordinance the defendant is alleged to have violated (Balsamo v City of New York, 287 AD2d 22, 25 [2d Dept 2001]), and the predicate statute or ordinance must also promulgate a particularized mandate or a clear legal duty (id. at 26; Gonzalez v Iocovello, 93 NY2d 539, 551 [1999]; Desmond v City of New York, 88 NY2d 455, 463-464 [1996] ["Rather, the 1989 enactment was intended to provide police officers with an avenue of recourse where injury is the result of negligent non-compliance with well-developed bodies of law and regulation which impose clear duties" [internal quotation marks omitted]).
In terms of causation
Section 205-a's causation element is clear on its face: it gives a firefighter (or a deceased firefighter's representative) a right of action against any person whose negligent failure to comply with a government provision either directly or indirectly' results in injury or death. The only reasonable conclusion that can be drawn from inclusion of the word indirectly' in the statute is that the Legislature intended to broaden a firefighter's cause of action under section 205-a to encompass situations where the alleged violation was not the "direct" cause of the injuries
(Giufrida at 80). Thus, for purposes of proving causation under 205-a or 205-e, "plaintiff is not required to show the same degree of proximate cause as is required in a common-law negligence action . . . [but,] [r]ather the substantial case law that has developed on the subject holds that a plaintiff need only establish a practical or reasonable connection' between the statutory or regulatory violation and the claimed injury" (id. 81). In Giuffrida, plaintiff a firefighter was injured when after reporting to a fire, he ran out of oxygen sustaining injury ( id. at 75). Plaintiff sued pursuant to GML § 205-a, alleging that his injuries were caused by defendant's violation of the building code provisions requiring the safe maintenance of the premises ( id. at 75-76). In denying defendant's motion for summary judgment, the court rejected defendant's argument that there was no reasonable connection between the alleged building code violations and plaintiff's accident ( id. at 76). The court so held, on grounds that while the building code did not proximately cause plaintiff's accident, the violations, the failure to properly maintain a fire suppression system, led to the same not activating "so as to prevent or extinguish the fire that ultimately led to his injuries" ( id. at 81).
While in 1995, the court in Zanghi , held that an owner or contractor's statutory liability under GML § 205-a for an injury sustained by a firefighter upon real property could only lie "if [defendants] were in control of the premises at the time of the firefighter's injury" (id. at 445 [internal quotation marks omitted]), the amendment to the statute in 1996 evinces that this is no longer the case. In Raquet v Braun, one of the cases decided along with Zanghi, plaintiffs, both firefighters, were injured - one plaintiff dying from his injuries, when a canopy roof on a building addition and a portion of the addition's masonry wall collapsed during a fire (Raquet at 437). Premising their claims, in part, on GML § 205-a, plaintiffs sued the owner of the building at the time of the accident and also sued the contractors involved in the construction of the canopy roof and masonry wall, which construction had occurred 12 years prior to the accident alleged (id.). In dismissing the GML § 205-a claims against the contractors involved in the design and erection of the canopy roof and masonry wall, the court held that the Legislature intended section that GML § 205-a liability to be asserted only against those having control over the premises and so held by looking at the amendments made to GML § 205-e, which prior to the amendment in 1996, offered identical protection to police officers (id. at 444-445).
Zanghi is actually three cases - Zhangi v Niagara Frontier Transp. Commn., Raquet v Braun, and Ruocco v New York City Tr. Auth. Hereinafter the Court shall collectively refer to the aforementioned cases as Raquet.
Specifically, the court noted that the legislative history evinced that the Legislature intended GML § 205-a liability to be asserted only against those having control over the premises because it had not been amended in the same way that GML § 205-e had been ( id.) The court noted that
[a]ccording to a memorandum of the State Executive Department issued when section 205-e was enacted in 1989, the purpose of the bill was to give police officers the same right of action enjoyed by firefighters where injury is the result of negligent non-compliance with regulations that apply to the maintenance of premises and impose clear duties on property owners that are intended to benefit firefighters, police officers and any other person who may enter upon premises subject to regulation. In 1992, section 205-a was amended, however, to permit police officers to recover for injuries sustained while in the discharge or performance at any time or place of any duty imposed by the police commissioner. The statement of legislative intent accompanying the bill states that liability pursuant to this section should no longer be limited to violations pertaining to the safe maintenance and control of premises. Since our police officers are required to confront dangerous conditions under many and varied circumstances, there is a need to ensure that a right of action exists regardless of where the violation causing injury or death occurs (id. 444-445). Based on the foregoing, the court in Raquet, thus, reasoned that because no similar amendment to section 205-a had been promulgated, it could be inferred that the Legislature had decided to retain the traditional premises-based liability under General Municipal Law § 205-a's right of action for firefighters (id.). In that court's view, then, the defendant who owned the premises at the time of the accident could clearly be held directly liable under GML § 205-a for the building code violations alleged, but defendant contractors, however, could not because they were not in control of the premises at the time of the plaintiff's accident (id. at 445; see Furch v General Elec. Co., 142 AD2d 8, 14 [3d Dept 1988] [Since this construction was completed some eight years before the firefighters were injured, it is clear that BEC was not guilty of said neglect, omission, willful or culpable negligence at the time of such injury, as required by General Municipal Law § 205-a. Accordingly, said firefighters' statutory causes of action should be dismissed."]).
In 1996, after the Court of Appeals decided Raquet, GML 205-a was amended. Thus, where previously the statute did not contain the words "at any time or place," such language was added (L 1996, ch 703, § 4). In so doing, the Legislature indicated that[t]he legislature concludes that the duties of our state's firefighters are performed in a variety of contexts and that the liability imposed should not be limited to violations pertaining to the safe maintenance and control of premises . . . [thus] a right of action should exist regardless of whether the person whose negligence leads directly or indirectly to the violation causing injury or death o wns or controls the premises where such violation occurs
(id. at § 3 [emphasis added] ).
Clearly the amendment to GML § 205-a was prompted by Raquet. To be sure, the amendment was not only identical to the previous amendment to GML § 205-e - whose language the court in Raquet found dispositive in dismissing the action against the contractors who, although performed work at the premises, were not in control of the same at the time of the accident. In addition, in advocating for the amendment the Legislature received a memorandum from New York State Professional Fire Fighters Association, Inc., wherein it stated
Court of Appeals decision in Racquet has issued another debilitating blow to Section 205a, because that decision insulates independent contractors from liability under that statute. Interestingly, as part of the reasoning for holding §205a liability may be asserted only against those having control over the premises (and not contractors who have worked on the premises and were no longer in control), the Court of Appeals quoted the legislative history and specifically mentioned the amendment of 1992, which established the change for police officers, The Court then found that, because no similar amendment to §205a has been affected, it can be inferred that the Legislature has decided to retain for fire fighters only the premisesbased liability under Section 205A General Municipal Law.
It is common knowledge that code violations which can cause fire or exacerbate the dangers inherent in fighting fires are latent and are often created by construction activities which may have occurred many year prior to the injuryproducing fires. With Racquet any building owner or occupant can defend a Section 205a claim by stating that he/she was unaware of the defect and that it was caused by an independent contractor over whom he/she exercised no control
(Memorandum in Support from New York State Professional Fire Fighters Association, Inc., L 1996, ch 703).
Given the amendment to GML § 205-a and the court's holding in Raquet, it is clear that for purposes of liability under GML § 205-a, the absence of control, maintenance or ownership of the premises at the time of injury is no longer a bar to liability. In fact, in Collaro v Time Warner Entertainment Co. (237 AD2d 319 [2d Dept 1997]), where the defendant - a cable television provider - sought summary judgment for an injury to plaintiff - a fireman - resulting from the manner it had installed cable wire, the court denied defendant's motion for summary judgment (id. at 320). Specifically, defendant argued summary judgment was warranted because "it neither owned nor was involved in maintaining or repairing the premises from which the plaintiff fell" (id.). The court nevertheless denied summary judgement noting that under GML § 205-a, "a defendant who is not the owner of the premises may be held liable if employed on the premises or engaged in maintaining or repairing it at the time of the firefighter's injury (id. [internal quotation marks omitted]). Similarly, in Grawin v Tudor Place Associates (260 AD2d 314 [1st Dept 1999]), where a firefighter was injured by a partial building collapse, the court denied defendant's motion - the demolition contractor who allegedly failed to properly shore-up the area after it had performed demolition (id. at 314). In denying the defendant's motion despite his averment that he neither owned nor maintained the premises at the time of plaintiff's accident, the court noted that "the statute [GML § 205-a] imposes liability for violations of regulations relating to the safety of premises regardless of the violator's ownership or occupancy of the premises" (id. at 315).
NHS' Motion
NHS' motion seeking summary judgment is granted, to the limited extent of dismissing all of plaintiffs' common law negligence claims and all cross-claims premised thereunder. On this record NHS establishes that at the time of Dana's accident it neither owned, maintained, nor controlled 679 nor 677 such that it had no common law duty to maintain the same in a reasonably safe condition. However, NHS' motion seeking summary judgment with respect to plaintiffs' claims pursuant to GML § 205-a is denied inasmuch as material questions of fact are extant with respect to whether NHS violated several sections of the building code when it rehabilitated 677, which violations, if credited, could give rise to a violation of GML § 205-a, and whether those violations directly or indirectly caused Dana's accident.
In support of the instant motion, NHS submits Dana's deposition transcript, wherein he testified, in pertinent part, as follows. On February 13, 2009, at approximately 11AM, while performing building inspections in his capacity as a firefighter with the City, he fell down a shaft located on the roof of 679. Dana had been a firefighter since 1999 and was assigned to 73 Engine. In addition to his duties as a firefighter, which entailed fighting fires, he was also tasked with performing inspections within the confines of Engine 73. The inspections were for purposes of discovering violations within buildings, such as missing fire extinguishers and broken fire escapes. On the date of his accident, Dana along with his company were performing inspections on Eagle Avenue. Prior to his accident, he and two of his fellow firefighters entered 681 Eagle Avenue (681) and wound up on the roof. This building was one of seven three-story, multi-unit buildings whose roofs were attached and included 679 and 677. Upon arriving on the roof of 681, Dana intended to inspect all seven attached buildings beginning with 677. At some point, while he was the roof of 679 inspecting a fire escape's gooseneck, he heard other members of his company trying to get on to the roof of 677. Dana proceeded to walk towards 677 in order to aid them with the scuddle- the hatch/door leading to the roof. As he approached a two-foot high parapet wall on 677 - which wall ran the length of 677 and 679's roofs, he fell into an open uncovered shaft on the roof of 679. Dana testified that he did not see the open shaft because the shadow cast by the parapet hid it from view. Dana testified that open unguarded shafts were a condition for which he would have issued a violation and that in the past such shafts were usually covered by a mesh or surrounded by a fence.
NHS submits Byron Todman's (Todman) deposition transcript, wherein he testified, in pertinent part, as follows. Todman was the Director of Housing Development with NHS of New York City (NHSNYC). NHS was a subsidiary of NHSNYC and Todman was an authorized agent with NHS. NHS was in the business of developing properties, which properties would be purchased from the City, renovated by NHS and sold. Todman's duties with NHS entailed the selling of renovated properties to prospective buyers and to that end, he was involved in advertising the sale of properties and reviewing the eligibility of prospective buyers. With respect to 677, NHS bought the same from the City and Todman was primarily involved in the sale of the premises to Rojas, after the same was renovated by Central. Once 677 was acquired by NHS, NHS hired Danois to prepare the renovation plans and hired Central to perform the renovation. NHS assigned a construction manager who would oversee the construction project, but whose role was limited to creating a construction schedule, visiting the site once a month to inspect the work so as to authorize payment, and ensure that the work was progressing. NHS' construction manager, would also be involved in any warranty claims asserted by the buyer to resolve the same. The construction at 677 had to meet the current building codes, but whether the same met such codes as well as supervision of the workmanship employed by Central during the work was the responsibility of Danois. With regard to 677, once the work was complete, NHS took possession, and the City then, on September 21, 2004, issued a Certificate of Occupancy (CO). Todman testified that when a CO was issued, the property and the renovations met the existing code. After the CO was issued, Central's work was subject to a warranty. Subsequent to the closing and sale to Rojas, Rojas made several claims under the warranty, including one for a violation issued to him by the City for an open shaft on 679 and the failure to provide protection to the parapet running in between 677 and 679. 679 was not owned by NHS and was not the subject of any work by Central. The violation was issued after Dana's accident and prompted Danois and Central to remedy the same by having Central erect a fence to protect the shaft.
NHS submits several documents related to the acquisition from the City and subsequent sale of 677 to Rojas. The Contract of Sale evinces that NHS acquired 677 from the City as part of the Homeworks program, and sold the same to Rojas after it was rehabilitated by a third party. The contract indicated that NHS was to employ a contractor to to rehabilitate 677 in accordance with the attachment to the contract. The foregoing attachment titled Rehabilitation indicated that all work was to be performed in accordance with the plans drawn by the architect and included major renovations to 677, including the electrical and mechanical systems. The contract further indicated that upon acquiring the property, Rojas took possession of the same fully aware of its condition and state of repair by virtue of Roja's own inspection and investigation. A copy of the deed indicates that the property was deeded to Rojas in December 2004 and that the CO was issued on September 21, 2004.
Based on the foregoing, NHS establishes prima facie entitlement to summary judgment. With respect to plaintiffs' common law negligence claims, as noted above, it is well settled that the common law, imposes an obligation upon the owner of real property to maintain his/her property in a reasonably safe condition (Peralta at 143 [2003]; Basso at 241 [1976]; Cupo at 51). Thus, the obligation is imposed based on the ownership of a premises or the occupancy, ownership, control or special use of the same (Balsam at 296-297; Hilliard at 693). Accordingly, absent evidence of ownership, occupancy, control, or special use, liability cannot be imposed (Balsam at 297). Here, the evidence presented by NHS clearly and unequivocally establishes that Dana fell down a shaft located on the roof of 679, which property NHS never owned, never rehabilitated, never controlled, nor had a responsibility to maintain. Thus, the record is clear that the only property to which NHS had any relationship was 677, a property upon which Dana never set foot prior to his accident. Accordingly, with regard to the common claims of negligence asserted against it, NHS establishes prima facie entitlement to summary judgment.
Plaintiffs and Central's opposition fail to raise any triable issues of fact sufficient to preclude summary judgment with respect to the their common law claims of negligence against NHS. While it is true, as argued by plaintiffs that GOL § 11-106 abrogated the bar on common law claims against owners of premises by firefighters injured while upon the same, this only allowed such claims if they were otherwise cognizable under the common law. Here, as noted above, and completely uncontroverted by any of plaintiffs' evidence, Dana was injured while on 679 - which property was never owned, controlled, nor maintained by NHS. More importantly, Dana was hurt in 2009, approximately five years after NHS transferred ownership and all maintenance responsibility of 677 to Rojas. Thus, since NHS had no duty to maintain 679, the common law negligence claims against it must be dismissed as well as any cross-claims premised on that cause of action (Balsam at 297). Contrary to plaintiffs' assertion, while the evidence demonstrates that in rehabilitating 677, NHS failed to comply with the building code by failing to ensure that the parapet was at least 42 inches and that the shaft located on 679 was covered or made safe, for purposes of common law negligence, such failure does not impute an obligation to safeguard the shaft on the roof of 679. As a result, the expert affirmations submitted by plaintiff - both of which allege that NHS had an obligation to secure the shaft on 679's roof and extend the height of the parapet between 677 and 679 - are obviously relevant and on the claim pursuant to GML § 205-a, but cannot serve to create an obligation where none exists under the common law.
As for the claim pursuant to GML § 205-a, however, NHS' evidence fails to establish prima facie entitlement to summary judgment. While as noted above, this State's well developed common law does not give rise impute liability under these circumstances to NHS because to do so would impose a duty to ameliorate a hazard on property to which it had no nexus at any time, let alone the time of the instant and alleged accident. However, the law governing plaintiffs' statutory claim has - and some might argue counter-intuitively - been so liberally and broadly construed so as to give rise to liability under circumstances such as these. Thus, preliminarily, NHS fails to meet its burden insofar the arguments in support of its motion have no basis in the applicable law. First, to the extent that NHS avers that the firefighter rule bars any common law claims against it, such argument lacks merit. It is true, that because "firefighters were held to have assumed the risks of their profession" ( Kenavan, at 566), they "were [initially] denied recovery [at common law] for injuries sustained while combating fires even though the owner of the premises on which the fire occurred was negligent in creating the condition that caused the accident" ( id. at 566). It is equally true, however, that such bar, as against owners such as NHS was lifted with the passage of GOL § 11-106, which created a right of action by a firefighter or police officer for "any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity." Thus, while common law negligence claims against a municipal employer for injuries sustained in the performance of a firefighter's official duties remained barred, such claims could be asserted against any other entity or person ( Melendez at 416- 417).
NHS' argument that it cannot be liable under GML § 205-a because it deeded 677 to Rojas in 2004, five years prior to Dana's accident is equally unavailing. While it is true that on this record, it is clear that NHS had no ties and indeed any responsibility to maintain 677 on the date of the alleged accident, such facts, standing alone, do not bar a claim pursuant to GML § 205-a. While it is true that in 1995, the court in Raquet held that an owner or contractor's statutory liability under GML § 205-a for an injury sustained by a firefighter upon real property could only lie "if [defendants] were in control of the premises at the time of the firefighter's injury" (id. at 445 [internal quotation marks omitted]), it is equally true that the subsequent amendment to the statute in 1996 evinces that the absence of ownership or control of a premises at the time of the injury cannot serve to bar a claim pursuant to GML § 205-a (Garwin at 315; Collaro at 320).
Notwithstanding the foregoing, NHS also fails to establish prima facie entitlement to summary judgment with respect to the claims pursuant to GML § 205-a, because the evidence it tenders, if credited, establishes that when it owned 677 and employed Central to rehabilitate the same, Central failed to extend the height of 677's parapet, which parapet was adjacent to the shaft, and also failed to cover the shaft on 679. On this record, such failure constitutes a violation of the applicable building code, and as per Dana's testimony, such failure obscured the presence of the shaft and contributed to Dana's fall.
As discussed above, the proponent of liability pursuant to GML § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter (Zanghi at 441; Brophy at 479. Moreover, for purposes of liability pursuant to GML § 205-a, the predicate statute identified must be part of a well-developed body of law and regulation that imposes clear legal duties or mandates the performance or nonperformance of specific acts (Paolicelli at 645; Vosilla at 650). In terms of causation, case law has made it clear that the inquiry is not whether the predicate statutes alleged to have been violated proximately caused the accident, but rather whether plaintiff establishes "a practical or reasonable connection between the statutory or regulatory violation and the claimed injury (id. at 81 [internal quotation marks omitted]).
Here, the very evidence submitted by NHS precludes summary judgment on the claims pursuant to GML § 205-a because it establishes that NHS violated the building code and that said violation contributed to Dana's accident. More specifically, NHS' evidence establishes that in rehabilitating 677, it failed to ensure that Central complied with the building code, such failure resulting in the issuance of a violation to Rojas for the failure to provide protection to the parapet running between the roofs of 677 and 679. Todman testified that even though NHS had been issued a CO upon completion of Central's work, a violation nevertheless was issued to Rojas after Dana's accident. Todman also testified that as a result of the violation, Danois and Central remedied the same by having Central erect a fence to protect the shaft, even though the shaft was on 679's roof. Dana's testimony, also submitted by NHS, further establishes that the parapet - 24 inches in height - obscured the shaft on the roof of 679, and that the shaft into which he fell was uncovered.
Based on the foregoing, and because plaintiffs pleaded that defendants violated § 27-334 of the New York City Building Code (NYCBC), requiring that parapets be no less than 42 inches in height and § 28-301.1 of the NYCBC, requiring that
[a]ll buildings and all parts thereof and all other structures shall be maintained in a safe condition. All service equipment, means of egress, materials, devices, and safeguards that are required in a building by the provisions of this code, the 1968 building code or other applicable laws or rules, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working condition, NHS fails to establish prima facie entitlement to summary judgment with respect to the cause of action pursuant to GML § 205-a.
Although, NHS fails to establish prima facie entitlement to summary judgment, thus, obviating the need to address the sufficiency of plaintiffs' opposition papers on the GML § 205-a claim (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ["The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (internal citation and quotation marks omitted)]; 6014 Eleventh Ave. Realty, LLC v 6014 AH, LLC, 114 AD3d 661, 661 [2d Dept 2014]), the Court nevertheless notes that plaintiffs' opposition raise a triable issue of fact precluding summary judgment.
Specifically, plaintiffs tender a copy of the violation issued to Rojas on February 13, 2009 by the City alleging that Rojas as owner of 677 was in violation of NYCBC §28-301.1 because he "failed to maintain the building in code-compliant manner." More specifically, because "[a]t rooflevel no protection provided to parapet for opening." Moreover, as noted above, plaintiffs submit two expert affidavits, the first from Stanley H. Fein (Fein), an engineer, and the second from Michael F. Cronin (Cronin), an expert in the areas of fire protection. Fein opines that because NHS totally gut-renovated 677, the renovations were governed by the 1968 Building Code, requiring that the open shaft on 679 be covered and that the parapet between 677 and 679 be extended to height of at least 42 inches. Specifically, Fein points to NYCBC § 28-301.1, requiring that the building be maintained in a safe condition and more specifically, NYCBC § 27-344, requiring that shafts on roofs be guarded and/or protected. Because NHS failed to comply with the foregoing statutes, Fein opines that it violated the building code, such violations causing Dana's accident. Cronin, proffers a similar opinion, adding that NYCBC § 27-334, applicable to NHS by virtue of the gut rehabilitation it performed on 677, required that the paparpet between 677 and 679 be 42 inches. Such failure, Cronin opines, contributing to Dana's accident.
Accordingly, plaintiffs' opposition would have raised a triable issue of fact with respect to whether NHS violated § 205-a by violating NYCBC 28-301.1 (Cusumano v City of New York, 15 NY3d 319, 326 [2010] [Court held that NY City Code 27-127, predecessor to NY City Code § 28-301.1 was a proper predicate for purposes of a claim pursuant to GML § 205-a.]), and other sections of the building code, thus, precluding summary judgment in favor of NHS on this claim.
Central's Motion
Central's motion seeking summary judgment is granted to the limited extent dismissing plaintiffs' claims for common law negligence and any cross-claims premised upon the same. On this record, Central establishes that as the contractor hired by NHS, at the time the owner of 677, to rehabilitated the 677, it did not cause nor create the condition alleged to have caused Dana's accident, the only circumstance which, in this case, could impute liability for common law negligence upon Central. However, with respect to plaintiffs' claim pursuant to GML § 205-a, premised upon, inter alia, violations of NYCBC § 27-334 and § 28-301.1, Central fails to establish prima facie entitlement to summary judgment, and, thus, that portion of its motion is denied.
In support of the instant motion, Central submits Dana and Todman's deposition testimony. Additionally, Central submits Yau S. Wu's (Wu) deposition transcript, wherein he testified, in pertinent part, as follows. Wu was president with Central. In 2003, Central was retained by NHS to rehabilitate 677. Central was given plans by Danois, NHS' architect and the renovation was performed pursuant to the those plans. With regard to the roof, despite the absence of any direction within Danois' plans, Central rebuilt the parapet separating 677 and 679. Wu saw and was aware that there was an open shaft on 679, but did nothing with regard to it because it was not on 677's roof, the premises he was hired to rehabilitate. With regard to the parapet, Wu had no idea what the code requirements were for such a wall, testifying that any code compliance was the responsibility of Danois. However, since the parapet was in need of repair, Central repaired it, never making it any taller than its original 24-inch height. Subsequent to completion of the construction, Wu learned that Rojas, the new owner, had been issued a violation for failure to protect the shaft on 679.
Central also submits two expert affidavits. The first is from Anthony M Dolhon (Dolhon), an engineer, who opines, in pertinent part, that because the shaft into which Dana fell was completely situated on the roof of 679, and not on 677, even if NYCBC 27-127 had not been superceded in 2008, making the same inapplicable, such provision would nonetheless be inapplicable to 677 and anyone affiliated therewith because the alleged hazard - the shaft- was not on 677's roof. For this reason, Dolhon also avers that NYCBC 28-301.1 is similarly inapplicable. The second affidavit is from Anthony Mellusi (Mellusi), also an engineer, who besides agreeing with Dolhon, opines that inasmuch as there was no open shaft on the roof of 677, the 1968 New York City Building Code did not require that the parapet in between 677 and 679 be 42 inches tall. Mellusi also opines that Dana's fall was caused by the open shaft, for which 677 cannot be liable and not because the parapet was shorter than 42 inches.
Based on the foregoing, Central establishes prima facie entitlement to summary judgment with respect to the common claims of negligence asserted against it and any cross-claims premised thereunder. Significantly, insofar as never an owner, tenant, nor lessee of 677, its liability is governed by different principles of law. More specifically, a contractor hired to perform work is generally not liable in tort to a non-contracting third-party when he/she/it breaches a contract and said breach causes injury to a third-party (Stiver at 257; Church at 111; Espinal at 138; H.R. Moch Co. at 164; Bugiada at 369). Thus, a contractor can only be held liable to third-party for injury, occasioned by their work, if, as relevant here, it caused or created the condition which is alleged to have caused a plaintiff's accident (Espinal at 140; Church at 111). Significantly, for purposes of liability, malfeasance as opposed to nonfeasance must be established (Church at 112). Alternatively, a contractor may be liable to a third party when in performing the work he was hired to perform, said contractor follows plans which are "so apparently defective, that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury" (Ryan at 46; Diaz at 135; Gee at 616; Pioli at 955); such exception imposing liability only if the defects were so glaring and out of the ordinary that they put the contractor on notice that the work performed by following the plans would cause injury (Ryan at 46).
Here, while as per Wu's testimony, even if Central had an obligation to make the parapet between 677 and 679 higher and had an obligation to cover the shaft on 679's property, the fact that it failed to do is tantamount to nonfeasance, and not for causing the conditions alleged. Accordingly, Central cannot be liable under that theory. Similarly, while Wu testified that the plans given to him and drafted by Danois did not make any reference to the parapet and work, if any, thereto, insofar as he also testified that he knew nothing about the applicable building code sections governing Central's work, it cannot be said that the absence of any direction within the plans as to the parapet's height was so glaring so as to make Central liable for following them. Thus, Central establishes prima facie entitlement to summary judgment with respect to plaintiffs' common law claim.
Nothing submitted by plaintiffs raises an issue of fact with respect to Central's liability for the common law negligence claims so as to preclude summary judgment. In fact, plaintiffs makes no attempt to oppose this portion of Central's motion.
With respect to plaintiffs' claims pursuant to GML § 205-a, however, Central fails to establish prima facie entitlement to summary judgment. Rather than repeat itself, the Court so holds because, as discussed above in reference to the motion by NHS, the very evidence presented by Central, namely Dana, Todman, and Wu's deposition testimony establishes that Central violated the Building Code and that said violations contributed to Dana's accident. Wu testified that it did nothing to safeguard the shaft on 679 nor to increase the height of the parapet to 42 inches. Since he and Todman also testified that Rojas received a violation from the City for these failures, the evidence establishes that in rehabilitating 677, Central failed comply with the building code, such failure causing Dana's accident. In light of the foregoing, while the affidavits submitted by Central from Dolhon and Mellusi - to the extent they establish that Central did not violate any codes - negate Central's liability, they - at best - only raise a issue of fact precluding prima facie entitlement to summary judgment. Similarly, as above-noted, because Central fails to establish prima facie entitlement to summary judgment, the Court need address the sufficiency of plaintiffs' opposition. However, suffice it to say, the plaintiffs' evidence, identical to that which they submitted in opposition to NHS' motion similarly raises questions of fact with respect to whether Central violated GML § 205-a by violating NYCBC § 28-301.1, requiring that the building be maintained in a safe condition; NYCBC § 27-344, requiring that shafts on roofs be guarded and/or protected; and NYCBC § 27-334 - all applicable to Central by virtue of the gut rehabilitation it performed on 677.
Rojas' Motion
Rojas' motion seeking summary judgment is granted to the limited extent dismissing plaintiffs' claims for common law negligence and any cross-claims premised upon the same. On this record, Rojas establishes that it neither owned, controlled, or maintained 679, the premise upon which the shaft into which Dana fell was located. Accordingly, Rojas establishes entitlement to summary judgment with respect to plaintiffs' claims premised on common law negligence. However, with respect to plaintiffs' claim pursuant to GML § 205-a, premised upon, inter alia, violations of NYCBC § 27-334 and § 28-301.1, Rojas fails to establish prima facie entitlement to summary judgment, and, thus, that portion of his motion is denied.
In support of his motion, in addition to Dana and Todman's deposition transcripts, Rojas also submits Dolhon's affidavit and the CO for 677. Rojas also submits his deposition transcript, wherein he testified, in pertinent part, as follows. In 2009, Rojas owned 677, a three-family unit, within which he also resided. Rojas bought the property in 2004 through a program. Prior to the purchase of the building it was completely rehabilitated by NHS. In 2009, Rojas became aware that there had been an accident on the roof of 679. He also received a complaint from the City alleging that the wall that ran between 677 and 679 was not tall enough. He forwarded the same to the architect, who then hired someone to erect a fence on top of the wall. While on the roof Rojas observed an open shaft, which shaft was completely on the roof of 679, a premises not owned by him.
Based on the foregoing, for the very same reasons discussed above, entitling NHS to summary judgment on the claims asserted against it for common law negligence, Rojas also establishes prima facie entitlement to summary judgment. As noted, the common law obligation to maintain a premises in a reasonably safe condition is imposed based on the ownership of a premises or the occupancy, ownership, control or special use of the same (Balsam at 296-297; Hilliard at 693). Accordingly, absent evidence of ownership, occupancy, control, or special use, liability cannot be imposed (Balsam at 297). Here, the evidence presented by Rojas, clearly and unequivocally establishes that Dana fell down a shaft located on the roof of 679, a property which Rojas never owned, never rehabilitated, never controlled, nor had a responsibility to maintain. Thus, the record is clear that the only property to which Rojas had any relationship was 677, a property upon which Dana never set foot prior to his accident. Accordingly, with regard to the common law claims of negligence asserted against it, Rojas establishes prima facie entitlement to summary judgment.
Nothing submitted by plaintiffs nor Central raises a triable issue of fact with respect to liability on the claims of common law negligence so as to preclude summary judgment. Again, while it is true, as argued by plaintiffs that GOL § 11-106 abrogated the bar on common law claims against owners of premises by firefighters injured while upon the same, this only allowed such claims if they were otherwise cognizable under the common law. Here, the record unassailably establishes that Dana was injured while on 679 - which property was never owned, controlled, nor maintained by Rojas - not 677. Contrary to plaintiffs' assertion, while the evidence submitted establishes that during the time which Rojas owned the building, he violated the building code in that 677 did not have a parapet at least 42 inches tall and that the shaft located on 679 remained uncovered and remained unsafe. However, for purposes of common law negligence, such failures do not impute an obligation upon Rojas to safeguard the shaft on the roof of 679. As a result, the expert affirmations submitted by plaintiff - both of which allege that Rojas had an obligation to secure the shaft on 679's roof and extend the height of the parapet between 677 and 679 - are obviously relevant on the claim pursuant to GML § 205-a, but they cannot serve to create an obligation where none exists under the common law. Moreover, and contrary to plaintiffs' assertion, Justice Catterson's opinion in Saretsky v 85 Kenmare Realty Corp. (85 AD3d 89 [1st Dept 2011]). While it is true, that as noted by that court that "even visible hazards do not necessarily qualify as open and obvious because the nature or location of some hazards, while they are technically visible, make them likely to be overlooked" ( id. at 92), the issue in Saretsky, unlike the case here, was not whether a defendant was liable under common law principles of negligence for a condition on property to which he has no legally cognizable nexus, but rather whether an open and obvious condition is a bar to liability ( id. at 92). More importantly, that case only stood for the proposition that an otherwise open and obvious condition might nevertheless be obscured on grounds that it created optical confusion ( id. at 92).
With respect to the claims asserted against Rojas pursuant to GML § 205-a, he fails to establish prima facie entitlement to summary judgment for the very same reasons that both NHS and Central failed to meet their burden - namely the very evidence they submit establishes violations of cognizable statutes, which violations Dana asserts caused his accident. As noted above, the Court so holds because, as discussed above in reference to the motion by NHS and Central, the very evidence presented by Rojas, namely Dana, Todman, and Rojas' deposition testimony establishes that Rojas violated the Building Code and that said violations contributed to Dana's accident. Rojas testified that at the time of Dana's accident he owned 677 and because he never ventured to go on to the roof, did nothing to safeguard the shaft on 679 nor to increase the height of the parapet to 42 inches. Since Rojas and Todman also testified that Rojas received a violation/complaint from the City for at least one these failures, the evidence establishes that Rojas, as owner of 677, failed to comply with the building code, such failure resulting causing Dana's accident. In light of the foregoing, Dolhon's affidavit, submitted by Rojas, - to the extent it establishes that Rojas did not violate any codes - negates Rojas' liability, it only serves to raise an issue of fact precluding prima facie entitlement to summary judgment.
Briefly, Rojas' contention that the issuance of the CO by the City conclusively establishes that 677 did not violate the building code sections alleged and, thus, insulate him from liability is unavailing. First, because Rojas was issued a subsequent violation asserting that he had in fact violated the building - which violation he paid and thus, ratified its existence - that a CO was issued serves to -at best - raise an issue of fact on the issue of the building's code violation. Second, in a case such as this, where there is ample evidence that the building code was violated, the issuance of a CO is not conclusive (Powers v 31 E 31 LLC, 24 NY3d 84, 93 [2014]).
Danois' Motion
Danois' motion seeking an order granting it summary judgment is hereby granted to the limited extent of dismissing the third-party claims for contribution and common law indemnification to the extent premised on the common law negligence. On this record, Danois establishes that as the contractor hired by NHS, at the time the owner of 677, to create the plans for the rehabilitation of 677, Danois did not cause nor create the condition alleged to have caused Dana's accident, the only circumstance which, in this case, could impute liability for common law negligence upon Danois. However, with respect to plaintiffs' claim pursuant to GML § 205-a, premised upon, inter alia, violations of NYCBC § 27-334 and § 28-301.1, Danois fails to establish prima facie entitlement to summary judgment, and, thus, that portion of its motion is denied.
In support of the instant motion, Danois provides much of the same evidence provided by Central, including Dana and Todman's deposition testimony. Danois also submits David Danois' (David) deposition transcript, wherein he testified, in pertinent part, as follows. In 2003 and through 2009, David, an architect, was president of Danois, and architectural firm. In 2003, NHS, who was in the business of developing dilapidated properties acquired from the City, hired Danois to design rehabilitation plans for 677. Danois' custom was to create blueprints and plans for the rehabilitation of a premises, which plans would be used by the construction contractor - in this case, Central - to rehabilitate a premises, here, 677. Danois filed completed drawings for the rehabilitation of 677 with the City and, thereafter, Central was hired by NHS to perform the work in accordance with those plans. During the rehabilitation process, it was Danois' obligation to monitor the work and ensure Central was following its plans. With regard to the roof at 677, it had 24-inch parapets all around and one running in between 677 and 679. Ultimately, Danois' drawings indicated that all but the parapet in between 677 and 679 had to have 42-inch high metal railings because they protected anyone from falling off the building. Because roofs at 679 and 677 were the same height and connected, Danois' plans did not indicate that the parapet between 677 and 679 had to be any taller than 24 inches. Because the rehabilitation of 677 was comprehensive, a CO was required upon completion of the work, which documentd that the building was habitable. A CO for 677 was issued on September 21, 2004. Because 677 was built in the 1920s, once rehabilitated in 2003, it had to comply with the 1968 Building Code. Prior to 1968, there was no requirement that parapets be taller than 24-inches. David was informed by NHS about Dana's accident and was also informed about a violation issued to Rojas subsequent thereto, for failing to guard the shaft on the roof 679. As a result, Danois designed a rail to be installed on the parapet between 677 and 679, which rail was installed by Central. David testified that in retrospect, the opening on 679 should have been guarded on 677's side.
Based on the foregoing, for reasons identical to those asserted by Central, Danois establishes prima facie entitlement to summary judgment with respect to the common claims of negligence asserted against and any cross-claims premised thereunder. Significantly, insofar as never an owner, tenant, nor lessee of 677, its liability, governed by different principles of law, is, on this record, nonexistent. As noted above, Danois, as contractor hired to perform work at 677 cannot be liable to Dana, a non-contracting third-party, in tort, unless, and to the extent relevant here, it caused or created the condition alleged to have caused Dana's accident (Espinal at 140; Church at 111). Because, for purposes of liability, malfeasance as opposed to nonfeasance must be established (Church at 112), here, where Danois' evidence establishes that at best it failed to design plans requiring a higher parapet or some other kind of safety system to guard the shaft into which Dana fell, it is clear that Danois is not liable for common law negligence.
Nothing submitted by plaintiffs or Central raises an issue of fact with respect to Danois' liability for the common law negligence claims so as to preclude summary judgment. Contrary to plaintiffs' assertion the failure to design plans making the parapet complaint to code is tantamount to an allegation that Danois failed to make the parapet more safe, such contention being meritless as a matter of law ( Church at 112). Nor, as discussed above, and for identical reasons, does Saretsky avail plaintiffs.
With respect to contribution and common law indemnification claims premised on plaintiffs' claims pursuant to GML § 205-a, however, Danois fails to establish prima facie entitlement to summary judgment. Again, rather than repeat itself, the Court so holds because, as discussed above in reference to the motion by NHS, the very evidence presented by Danois, namely Dana, Todman, and David's deposition testimony establishes that Danois violated the building code and that said violations contributed to Dana's accident. David testified that Danois did nothing to safeguard the shaft on 679 nor to increase the height of the parapet to 42 inches or prior to Dana's accident. David even testified that in retrospect Danois should have done something to guard the shaft on 679, and further testified that it failed to do so. Since David also testified that Rojas received a violation from the City for these failures, the foregoing evidence establishes that in rehabilitating 677, Danois failed comply with the building code, such failure resulting causing Dana's accident. Thus, Danois fails to establish entitlement to summary judgement with respect to the claims pursuant to GML § 205-a and the Court need not address the sufficiency of plaintiffs' or Central's opposition. However, suffice it to say, the plaintiffs' evidence, identical to that which they submitted in opposition to NHS' motion similarly raises questions of fact with respect to whether Danois violated GML § 205-a by violating NYCBC § 28-301.1, requiring that the building be maintained in a safe condition; NYCBC § 27-344, requiring that shafts on roofs be guarded and/or protected; and NYCBC § 27-334 - all applicable to Danois by virtue of the gut rehabilitation it performed on 677.
The City's Motion
The City's motion seeking summary judgment is granted. With respect to the common law claims of negligence the City establishes that Dana was injured while performing his duties as a firefighter employed by the City, and as a result of risk inherent in those duties. Accordingly, under well settled law, any common law claims against the City are barred. Plaintiffs' claims against the City pursuant to GML § 205-a are also dismissed because although the City fails to make meritorious arguments warranting summary judgment for the same, the record nevertheless establishes the City's entitlement such relief, a fact conceded by plaintiffs.
In support of the instant motion, the City submits Dana, Todman, and David's deposition transcript, which testimony has been amply discussed above.
With respect to plaintiffs' common law claims of negligence, it is well settled that because "firefighters [are] held to have assumed the risks of their profession" (Kenavan at 566), they "were [historically] denied recovery [at common law] for injuries sustained while combating fires even though the owner of the premises on which the fire occurred was negligent in creating the condition that caused the accident" (id. at 566). This bar was extended in McGee to preclude common law negligence claims against the municipality who employed a firefighter injured during the performance of his official duties for the aforementioned reasons (id. at 196 ["These Fire Patrolmen were bound to realize the hazards involved and had no right to assume that the Fire Department employees were under any obligation with respect to their safety other than to refrain from reckless acts or affirmative acts of carelessness directly having a tendency to cause them injury."]). In addition to case law, GOL § 11-106, which creates a right of action by a firefighter or police officer for "any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity," nevertheless bars any common law claims of negligence for such injuries against "that police officer's or firefighter's employer or co-employee" (Brady at 366; Melendez at 417).
Here, Dana testified that his accident occurred while he was performing building inspections on the roofs of 677 and 679, which were part of his duties as a firefighter employed by the City. Thus, since it cannot be credibly argued that this accident was not a risk inherent in the duties Dana assumed, his common law claims against the City are barred. Thus, the City establishes prima facie entitlement to summary judgment and nothing submitted by plaintiffs, coupled with their concession that the City should be granted summary judgment, precludes the same.
With respect to plaintiffs' claims pursuant to GML § 205-a, the City's arguments are unavailing. Indeed, as noted above whether the City owned the premises at issue on the date of Dana's accident is hardly dispositive given the amendment to GML § 205-a in 1996. For the very same reasons, neither is it availing that the predicate code violations alleged apply only to owners at the time of Dana's accident, at which time, the City argues it did not own 677.
The foregoing notwithstanding, Danois testified that prior to the rehabilitation at the behest of NHS, the governing building code did not require that the parapets on the roof of 677 be more than 24 inches nor that the shaft on 679 be guarded. Instead, Danois indicated that those obligations were imposed by the 1968 Building Code which did not apply prior to the rehabilitation undertaken by NHS. Thus, while the City did own 677, transferring the same to NHS in 2003, the evidence establishes that when the City owned the building it could have and did not violate any of the predicate statutes at issue and thus, for this reason, the City establishes entitlement to summary judgment and nothing precludes the same. It is hereby
ORDERED plaintiffs' claims and any cross-claims and third-party claims premised on common law negligence be dismissed as against NHS, Central, and Danois, with prejudice. It is further
ORDERED that the complaint and all cross-claims against the City be dismissed with prejudice. It is further
ORDERED that this action be hereby transferred to a non-City Part. It is further
ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty days (30) hereof.
This constitutes this Court's decision and Order.
Dated : July 6, 2015
Bronx, New York
_________________________
Mitchell J. Danziger, ASCJ