Opinion
Index 102868/2010 Motion 003
02-26-2013
RICHARD LAPIEDRA, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, ROBERT PENNACHIO & LUIS VENTAFEDDA, Defendants.
Hon. Thomas P. Aliotta
DECISION AND ORDER
The following papers numbered 1 to 3 were argued on the 20th day of June, 2012.
+-----------------------------------------------------------------------------+ ¦ ¦Papers ¦ ¦ ¦Numbered¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion by defendants The City of New York and New York ¦ ¦ ¦City Fire Department for Dismissal/Summary Judgment, with Supporting¦1 ¦ ¦Papers and Exhibits ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Affirmation by Plaintiff in Opposition to Motion, with Supporting ¦2 ¦ ¦Papers and Exhibits ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Reply Affirmation by The City of New York and New York City Fire ¦ ¦ ¦Department ¦ ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, the motion (003) for summary judgment and dismissal of the Complaint by defendants The City of New York and New York City Fire Department (hereinafter "the City") is granted.
This is an action for personal injuries allegedly sustained by Plaintiff Richard LaPiedra, a firefighter, as the result of a trip and fall on September 8, 2010. On this date plaintiff was working as a member of Rescue Co. No. 5 under the Special Operations Command and had responded to a fire at 15 Bower Court, Staten Island, New York. He was assigned the duty of roof position. In the course of the performance of this duty he was directed to search the rooms in the apartment on fire. In the course of this search he began to perform overhauling procedures in order to check for hidden pockets of fire. While working in a room which contained a number of marijuana plants in pots and growing equipment including hoses, wires and/or extension cords, plaintiff tripped and fell forward into a window jam. He continued in the performance of his duties, became caught up in the wiring on the floor, fell backwards and hit his head on the floor, suffering additional injuries.
Fire Department Lieutenant Joseph R. Light also entered the area and determined that the marijuana being grown in the room did not constitute a hazardous material. In his deposition (Exhibit G, at p.25 annexed to the moving papers) he stated that he did not assess the area for a tripping hazard.
Plaintiff alleges that, in substance, the City was negligent in causing or allowing a dangerous, unsafe and trap-like condition to remain at the subject location without any warnings; in failing to provide a safe means of access at the location and in failing to warn of a hazardous, unsafe and traplike condition, thereby causing the subject accident. Plaintiff also argues that a violation of General Municipal Law 205-e was predicated upon violations of Labor Law Sections 27 (a) and 27(a)(4); Labor Law Sections 200, 240 and 241; New York City Building Code; OSHA Section 5(a)(1) and the New York State Penal Code.
Plaintiff also alleges that defendant City owns, repaired and maintains the subject premises. The City has submitted an Affidavit (see, Exhibit H) to the effect that it does not own the subject property. The Court is persuaded that it does not.
In support of summary judgment dismissing the complaint against it, the City takes the position that plaintiff's cause of action for common-law negligence is barred by the so-called "firefighter's rule", which precludes police officers and firefighters from recovering damages at common law for injuries incurred out of the situations that create a need for their services (Santangelo v State of New York, 71 NY2d 393, 397; Zanghi v Niagara Frontier Transp Comm, 85 NY2d 423,439; Malenczak City of New York, 265 AD2d 532). Since plaintiff's injuries occurred in furtherance of a firefighting function which exposed him to a heightened risk of sustaining his particular injuries (see Malenczak, at 532), the common-law negligence cause of action should be dismissed.
Under the circumstances of this case, the Court agrees that the injuries incurred during plaintiff's participation in the duties of overhauling were in furtherance of a specific firefighting function and the cause of action for common-law negligence in which plaintiff alleges that the City was negligent in failing to warn of the dangerous condition in the "grow room"must be dismissed.
The City also urges dismissal on the grounds that the City has immunity in its discretionary decision-making. The Court of Appeals in McCormack v City of New York, 80 NY2d 808, reiterated it's position that "when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant is not answerable in damages for the injurious consequences of that action" (citations omitted). In this matter, a tactical decision was made to send firefighters into the grow room in order to carry out the procedure of overhauling in accordance with a policy of opening walls to see if there was an ongoing fire hazard. During his deposition testimony Lt. Light stated that assessing the proper procedure for a firefighter who responds to a fire and observes tripping hazards is a difficult issue because there are always tripping hazards (Exhibit G, p 31). There is no evidence before this court that the municipality violated its own internal rules or policies (see Johnson v City of New York, 15 NY3d 676).
The City also moves for dismissal arguing that plaintiff's claim under General Municipal Law Section 205-e is not supported by any valid predicates under the facts of this case in that they are inapplicable to firefighting circumstances. Plaintiff states, in opposition, that he was not provided with an area of employment free from recognized hazards, in violation of Labor Law Sections 27-a and 27(a)(3) or OSHA Section 5(a)(1) as set forth in Labor Law 27-a(4). In support plaintiff submitted an Expert Affirmation (see Exhibit 5 annexed to the Affirmation in Opposition). The expert, Mr. Leo DeBobes opined, in substance, that (1) when a tripping hazard is identified it should be broadcast over the radio to warn firefighters of the situation so that they could take corrective action; (2) that performing overhaul duties in a drug laboratory is not an activity that plaintiff would have been familiar with in the course of his employment; and (3) plaintiff's injuries were caused by a recognizable tripping hazard observed by both the Battalion Chief and Lieutenant Light. It is argued that under these circumstances there was a violation of the above-listed statutes.
In order to make out a claim under General Municipal Law Section 205-e a plaintiff must "[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm" (Williams v City of New York, 2 NY3d 352,citing Giuffrida, 100 N.Y.2d at 79).
As stated above, plaintiff alleges a violation of Labor Law Section 27-a(3). The Appellate Division, Second Department has determined that Labor Law Section 27-a may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law Section 205-e see Balsamo v City of New York, 287 AD2 22, wherein a police officer was injured in his patrol car due to an allegedly improperly equipped vehicle). If applicable, the issue is whether plaintiff's expert was able to raise a triable issue of fact as to whether there was a recognizable hazard in the subject room which was violative of an employer's duty to furnish to each of its employees a place of employment which is are free from recognized hazards that are likely to cause serious physical harm (see Norman v City of New York, 60 AD3d 830); Labor Law Section 27-a(3)(1), in pertinent part). However the court questions whether this section is applicable to the subject situation because of the general nature of firefighters' work and the fact that plaintiff was injured at a fire site and not a station house.
In Williams, supra the Court of Appeals found that Labor Law Section 27-a(3) does not apply due to the special risks faced by police officers due to the nature of their work. This Court finds the reasoning of the Court of Appeals in that case to be applicable to the circumstances of this case (see Williams, supra at 368). Accordingly, the directives set forth pursuant to The Occupational Safety and Health Act of 1970 (OSHA) Section 5(a)(1) need not be addressed.
The City likewise argues that Labor Law Sections 200, 240 and 241 are not viable predicates for liability under the circumstances of this case, arguing that firefighters are not within the class of persons that Labor Law §200 was intended to protect; that Labor Law §240 is applicable to incidents involving a fall from heights and not relevant pursuant to the evidence elicited herein; and Labor Law §241 pertains to the safety of construction workers and plaintiff must set forth the relevant safety provisions of the State Industrial Codes Rules and Regulations which were allegedly violated. Notwithstanding that plaintiff used a portable ladder at one point during the course of his duties, this incident was not a height related accident and defendant City is not an owner nor a contractor with respect to the subject premises.
Accordingly, it is
ORDERED that defendants motion for summary judgment is granted in all respects; and it is further
ORDERED that the action shall continue as to each of the remaining causes of action and cross claims; and it is further
ORDERED that the Clerk enter judgment in accordance herewith.
ENTER
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Hon. Thomas P. Aliotta,
J.S.C.