Opinion
February 10, 1994
Appeal from the Supreme Court, New York County (Joan B. Lobis, J.).
Contrary to defendant-appellant Zaffuto Construction Company's claim, plaintiffs established a prima facie case of negligence. The evidence sufficed to afford a rational basis for the jury's finding in favor of the plaintiffs (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499). There was testimony that appellant, a carpentry contractor, had created an opening in an apartment floor to convert it to a duplex unit, but had failed to properly barricade it as required by contract and by law. When plaintiff fireman entered the dark and unlocked apartment to fight a fire in an adjacent building owned by the City of New York, shortly after midnight on April 7, 1985, he fell through the unguarded hole and sustained permanent back-related injuries.
The trial court properly charged the jury on the applicability of General Municipal Law § 205-a as the injury to plaintiff fireman was directly related to noncompliance with regulatory provisions concerning appellant's maintenance of the premises (see, Schwarzrock v. Thurcon Dev. Co., 193 A.D.2d 357) and since he was engaged in a firefighting operation at the premises at the time of his injury (see, Gerhart v. City of New York, 56 A.D.2d 790, lv denied 42 N.Y.2d 810; Citowitz v. City of New York, 77 A.D.2d 642; see also, Andreaccio v. Unique Parking Corp., 158 A.D.2d 222, 227). Similarly, the court did not err in failing to charge, on behalf of appellant, the "presumption of continuance of a condition" as no proof was adduced concerning the claim that the floor opening to the subject fifth floor apartment had been barricaded at the time of its last alleged business day on the premises prior to the incident.
We have considered appellant's remaining claims and find them to be without merit.
Concur — Carro, J.P., Wallach, Asch, Nardelli and Williams, JJ.