Opinion
February 11, 1999
Appeal from the Supreme Court, Bronx County (Alan Saks, J.).
The so-called "firefighter's rule," codified in General Municipal Law § 205-a, precludes recovery against a property owner for injury due to common-law negligence arising out of the very risk that draws the safety officer to the scene (Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423). By the same token, the statute affords protection to the firefighter injured as a result of a building code violation that enlarges the hazard of his task by diminishing fire safety or prevention (Mullen v. Zoebe, Inc., 86 N.Y.2d 135, 141). To the extent that notice of a violation is ever required (see, Lusenskas v. Axelrod, 183 A.D.2d 244, appeal dismissed 81 N.Y.2d 300), it is not required here. Unquestionably, defendants, even as successor landlords, are responsible for the narrow-tread, spiral staircase to the attic, constructed in violation of the building code. Whether plaintiff's slip and fall was due to that condition or to his own act in pouring water onto the steps is a question for the trier of fact.
We agree with the motion court that the affidavits of plaintiff and his expert raise an issue of fact as to whether there is a reasonable connection between plaintiff's injury and the dimensions of the steps on which he fell. Contrary to defendants' contention, plaintiff's affidavit that he had difficulty maintaining his footing up the narrow staircase did not completely contradict his deposition testimony that he fell near the top on a wet step. To the extent that there is inconsistency between these sworn statements, such merely presents an issue of credibility for the fact finder.
Motion insofar as it seeks leave to appeal to the Court of Appeals denied; insofar as it seeks reargument, the motion is granted, and upon reargument, the unpublished decision and order of this Court entered on November 17, 1998 (Appeal No. 2282) is recalled and vacated and a new decision and order substituted therefor.
Concur — Sullivan, J. P., Williams, Wallach and Saxe, JJ.