Opinion
7962/04.
Decided August 4, 2006.
Upon the foregoing papers, defendants The Beatrice Epstein Family Partnership, L.P (the Epstein Partnership) and Alexander Tregubov, D.D.S. (Dr. Tregubov) move, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint of plaintiffs Paul M. Downey and Anika M. Downey on the ground that plaintiff's alleged injuries were not directly or indirectly caused by statutory violations at the subject premises. Plaintiffs oppose the instant motion on the ground that triable issues of fact exist with respect to both the alleged code violations and the causation of plaintiff's injuries which preclude the grant of summary judgment to defendants.
Plaintiff Anika Downey is suing derivatively for the loss of society and companionship of her husband, Paul M. Downey. The term "plaintiff" when used in the singular herein, will always refer to plaintiff Paul M. Downey.
In the instant action, plaintiff, a firefighter for the City of New York, seeks damages for injuries he allegedly sustained while engaged in firefighting duties at 115 Brightwater Court in Brooklyn (the Premises). The Epstein Partnership owns the Premises and Dr. Tregubov rents office space on the first floor. On September 22, 2003, a fire occurred in Dr. Tregubov's office. Fire department records show that an alarm was first received at 1:07 a.m. and a fire company arrived on the scene at 1:11 a.m. Plaintiff was assigned to Ladder Co. No. 61, the fire company which arrived first at the Premises. A couple of minutes after plaintiff's company arrived, a second company, Ladder Co. No. 169, also arrived.
At his deposition, plaintiff testified that after he arrived at the Premises, he did not see any smoke or other signs of fire. Shortly thereafter, he was sent to an apartment located on the second floor because a call had come in to the fire department identifying that apartment as the location of the fire. When plaintiff first arrived at the apartment there was smoke present throughout the apartment, but there were no visible open flames. Thereafter, plaintiff was ordered to try to open up the back of a wall of a closet located in the apartment so as to ascertain the exact location of the fire. Plaintiff tried to use a hook to open the wall but was not able to do so. He eventually was able to open up a corner of the closet with the hook and also pulled down a little of the ceiling. Thereafter, unbeknownst to him, the hook became stuck on a beam in the ceiling and when he attempted to pull the hook back down he felt pain in his neck and shoulders. Plaintiff testified that he was notified at some point during his firefighting duties that the fire was located in an office on the first floor below the second floor apartment where plaintiff was injured.
Norma Rivera testified at her deposition on behalf of the Epstein Partenership. She stated that on the date of the fire, her husband, Paul Rivera, was the superintendent of the Premises and that she assisted him with his duties. She testified that those duties included checking the smoke alarms in all of the apartments, including those located in Dr. Tregubov's dental office. On the night of the fire, a tenant from apartment 3F informed Mr. Rivera of a possible smoke condition at the Premises. Ms. Rivera went with her son to the second floor but did not see a fire. She testified that her husband went to the upper floors to investigate. She further testified that within five minutes of first being alerted to the presence of smoke, Mr. Rivera discovered that the fire was located in Dr. Tregubov's office. Ms. Rivera stated that her son then called the fire department and firefighters arrived within five minutes of the call.
In opposition to the instant motion, plaintiffs submit the expert affidavit of Michael F. Cronin, a principal in a consulting firm specializing in fire protection, life safety and fire analysis, who has held a number of positions within the New York City Fire Department. Mr. Cronin states that upon his review of the certificate of occupancy for the Premises and his own inspection of same, he concluded that Dr. Tregubov's office had been illegally converted from a residential unit to a commercial office without any requisite plans or permits being filed. He also states that such a conversion violates Multiple Dwelling Law §§ 27-126, 27-147, 27-262, 27-215, 27-217 and 300. Mr. Cronin also reviewed a fire incident report generated with respect to the subject fire which states that there were no smoke detectors present at the location of the fire. He notes that such a lack of smoke detection equipment violates Multiple Dwelling Law § 27-979 which requires that all "dwelling units" must be equipped with smoke detection devices.
With respect to the cause of plaintiff's injuries, Mr. Cronin opines that such injuries occurred due to an alleged delay in determining where the fire was located. Specifically, he states that if the fire initially had been identified as being confined to Dr. Tregubov's office, as was ultimately learned, plaintiff would not have been present on the second floor and engaged in the fire detection activities which allegedly resulted in his injuries. Mr. Cronin attributes this alleged delay to a lack of smoke detectors in the office as well as to the office's illegal conversion from a residential unit to a dentist's office in violation of the certificate of occupancy for the Premises which limits the Premises to a residential use. He states that the fire marshal's report concerning the fire demonstrates that the fire was "well-developed" by the time it was discovered, thereby evidencing a delay in timely detection of the actual location of the fire. Mr. Cronin determined that if the office had remained a residential unit with an entrance into the lobby of the Premises as opposed to having a separate entrance as it did after the conversion, and had contained adequate smoke detection devices, the fire would have been identified as originating from that location from the outset, either by the residential tenant of the unit itself or by neighboring residential tenants, and plaintiff, as part of the fire company responding first, would have been directed to fight the fire in Dr. Tregubov's office instead of being ordered to engage in the fire detection activities on the second floor of the Premises which allegedly resulted in his injuries.
In response to plaintiffs' expert's affidavit, Dr. Tregubov submits the affidavit of Frank Valenti, a retired New York City fire marshal. Mr, Valenti states that there is no evidence that the fire was "well-developed" at the time plaintiff arrived at the premises, given that when plaintiff and his company first arrived at the Premises, the actual location of the fire was not readily ascertainable by sight. He also states that although the incident report cited to by Mr. Cronin noted that there were no smoke detectors present in the office at the time of the fire, such report did not necessarily take into account that smoke detectors might have been knocked down, melted or otherwise destroyed during the fire or related fire fighting activities. Moreover he notes that Dr. Tregubov, as a tenant, was not responsible for either the alleged illegal conversion of his office, which presumably took place prior to his tenancy, or for supplying smoke detectors for said office.
Mr. Valenti also opines that even if the alleged office conversion did represent a code violation or a smoke detector was not present in the office, it is entirely speculative to assume that the fire would have been detected sooner and, in fact, there is no evidence that there was any undue or unusual delay in detecting the actual location of the fire given that said location was not readily ascertainable by sight at the time of plaintiff's arrival at the Premises. Mr. Valenti also opines that even if the exact location of the fire had been reported earlier, it is speculative to assume that plaintiff would not have been assigned to fire detection duties on the second floor because the fire was not immediately visible upon his arrival and it is common for there to be multiple calls regarding a single fire, often giving different locations for the fire or not giving an exact location, which necessitate an investigation as to the source of the fire. Moreover, Mr, Valenti notes that although the first arriving fire company is generally dispatched to the actual location of the fire, there are various situations, particularly when the location of the fire is not easily ascertainable upon arrival and there are multiple calls involving said fire, where the first arriving company initially might be engaged in fire detection activities in a different area of the affected premises.
Summary judgment should only be granted where there are no triable issues of fact ( Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law ( Prince v. Di Benedetto, 189 AD2d 757, 759; Zarr v. Piccio, 180 AD2d 734, 735). Once the movant has established its prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York, 49 NY2d 557, 562; see also Romano v. St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470; Tessier v. New York City Health Hospitals Corp., 177 AD2d 626). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion ( Goldstein v. Monroe County, 77 AD2d 232, 236). Since summary judgment deprives a party of his or her day in court ( Henderson v. City of New York, 178 AD2d 129), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law ( Barclay v. Denckla, 182 AD2d 658).
Additionally, "[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" ( Chahales v. Garber, 195 AD2d 585, 586). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her initial burden of proof and the nonmovant's opposition to the motion for summary judgment is "entirely conjectural and there is no genuine issue [of fact] to be resolved" ( Cassidy v. Valenti, 211 AD2d 876, 877).
"To make out a valid claim under General Municipal Law § 205-a, a plaintiff 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'" ( Zvinys v. Richfield Investment Co., 25 AD3d 358 lv denied ___ NY3d ___ [2006], quoting Zanghi v. Niagara Frontier Transp. Commn., 85 NY2d 423, 441). "As a remedial statute, [§ 205-a] is subject to liberal construction" ( Foiles v. V.L.J. Construction Corp., 17 AD3d 297, 299). Accordingly, to make out a claim under § 205-a, a plaintiff need not demonstrate the same degree of proximate cause as is required in a common-law negligence action; rather, "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" ( Giuffrida v. Citibank Corp., 100 NY2d 72, 81 [internal quotation marks and citations omitted]). However, although a practical and reasonable connection is all that need be shown, the necessary causative element will not be found where the connection between the alleged injury and the statutory violation is deemed either too speculative or attenuated to support § 205-a liability ( see e.g. Kenavan v. City of New York, 267 AD2d 353, 356, lv denied 95 NY2d 756 [finding that "the requisite causal connection between the alleged violations of the statues and regulations relied on [was] absent" where, although "the harm might not have occurred" if the defendant municipality had not violated the subject statue, said violation merely, in effect, placed the decedent firefighter at the scene where he was struck by a vehicle, an incident unrelated to the alleged violation]; Dillon v. City of New York, 238 AD2d 302, 302, lv denied 90 NY2d 811 [finding no practical connection between sprinkler system failing to operate and plaintiff's injury which occurred when the fire hose he was using to extinguish the subject fire burst, throwing him to the ground]).
Here, defendants have demonstrated their prima facie entitlement to summary judgment and plaintiffs have failed to raise a triable issue of fact with regard to their claim that the alleged code violations either directly or indirectly caused plaintiff's injury. Defendants have established their prima facie case by submitting uncontradicted deposition evidence that plaintiff was injured in a second floor apartment while performing fire detection activities and was not injured due to any structural condition present in the office or attributable to its alleged illegal conversion from a residential unit to an office ( cf. Foiles, 17 AD3d at 297 [question of fact precluding summary judgment for defendant existed where it was claimed that a defendant's failure to comply with conditions precedent to obtaining a certificate of occupancy, including alterations to allow for light and ventilation, contributed to the poor visibility which allegedly caused the firefighter's injuries]). Defendants also proffer the deposition testimony of Ms. Rivera, who testified that she identified the source of the smoke condition as Dr. Tregubov's office within five minutes of being notified of such condition and that her son called the fire department thereafter informing them of same. Defendants also submit the expert affidavit of Mr. Valenti which states that it is common for multiple individuals to call the fire department without a clear idea of the location of the fire and, accordingly, it is common practice for firefighters to perform fire detection functions to determine the location of the fire, particularly when it is not clear upon arrival from which location the fire is emanating. Moreover, Mr. Valenti states that even if smoke detectors had been present or the office had been a residential one, it is pure speculation that the location of the fire would have been determined sooner or called in more accurately or that smoke detection activities on the second floor would have been obviated.
In response to the defendants prima facie showing, plaintiff has not demonstrated the existence of a question of fact with regard to the causation of plaintiff's alleged injuries. Mr. Cronin's affidavit relies on mere speculation with respect to his claim that the alleged lack of smoke detectors and alleged illegal conversion of the office from residential to commercial caused plaintiff to be present on the second floor where he was allegedly injured. As noted by Mr. Valenti, it is entirely conjectural to assume that if the unit in question were residential, the residential tenant would have been present in the unit at the time of the fire and the exact location of the fire would have been detected sooner. Likewise, given that there was no one present in the office at the time — a situation which, as previously noted, could well have occurred even if the unit were residential — it is entirely speculative to assume that the presence of smoke detectors would have alerted tenants in other units of the exact location of the fire more quickly, particularly given the late hour at which the fire occurred. In addition, it is undisputed that plaintiff's fire company arrived approximately four minutes after the first alarm was received by the fire department and that, upon his arrival at the scene, plaintiff saw no signs of a fire, a fact which gives credence to Mr. Valenti's conclusion that the fire was not necessarily "well-developed" due to a delay in detection prior to the arrival of the first-responding company. There is, therefore, no evidence that the fire was not detected close to its inception, as it was not apparent to the arriving firefighters, including plaintiff, where the fire was located. Moreover, although a call was apparently received identifying the subject second floor apartment as the source of the fire, Ms. Rivera testified that her son also called the fire department and gave the correct location of the fire. Since there is evidence that more than one location was identified to the fire department as the source of the fire, it is entirely speculative to assume that no fire detection activities on the second floor would have been conducted or would only have been conducted by the later arriving company, particularly in light of the fact that it appears that the correct location of the fire was, in fact, relayed to the fire department but, nonetheless, the exact location of the fire could not be readily ascertained by the first arriving company. Therefore, even if someone had heard a smoke detector in the first floor office or had called from that unit, it appears that the fire department still would have received a call from the second floor apartment with regard to a smoke condition that needed to be investigated. Moreover, Mr. Cronin's claim that the office's separate entrance somehow also delayed earlier detection of the fire is conclusory. Finally, even if the code violations had placed plaintiff at the scene of his injury — which, as previously noted, is entirely speculative — it is undisputed that the injury itself was actually caused when plaintiff's hook became caught on a beam, an incident that, in and of itself, is not directly or indirectly related to such alleged violations ( see Kenavan, 238 AD2d at 302). Accordingly, given that it is not claimed that any structural defect or dangerous condition resulting from a statutory or regulatory violation caused plaintiff's alleged injuries, which were sustained in the course of ordinary fire detection activities, and there is no evidence, other than speculation on the part of plaintiffs' expert, that the alleged lack of fire detectors and alleged illegal conversion of the office from residential to commercial delayed the identification of the correct source of the fire, thereby necessitating fire detection activities to be conducted on the second floor which would otherwise not have been conducted by plaintiff, the court is constrained to grant the defendants' motion for summary judgment with respect to plaintiffs' § 205-a claim.
Plaintiffs' claims based upon common law negligence must also fail for much the same reason. As an initial matter, Dr. Tregubov, as a tenant, was not responsible for the alleged illegal conversion or the alleged absence of smoke detectors in the office. Moreover, even if the Epstein Partnership, as owner, had either actual or constructive notice of the alleged violations, as previously discussed, the causal connection between such violations and plaintiff's injuries is wholly conclusory and speculative and plaintiffs have failed to raise an issue of fact with respect to the necessary element of proximate cause ( see Driscoll v. Tower Assocs., 16 AD3d 311, 313 ["[P]laintiff's failure to demonstrate that the alleged violations proximately caused the accident meant that defendants could not be liable for common-law negligence"]). Accordingly, any claims asserted by the plaintiffs which are based upon common law negligence principles must also fail.
Pursuant to General Obligations Law § 11-106, a firefighter injured in the performance of his or her duties whose injuries are proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity other than that of the firefighter's employer, may seek to recover damages from the person or entity whose conduct resulted in the injuries.
As a result, the defendants' motions for summary judgment are granted and the plaintiffs' complaint is dismissed.
The foregoing constitutes the decision, order and judgment of the court.