Opinion
0030565/2005.
February 6, 2008.
SIBEN SIBEN, LLP, Attorneys for Plaintiff, Bay Shore, New York.
DEVITT SPELLMAN BARRETT, LLP, Attorneys for Defendants, Smithtown, New York.
Upon the following papers numbered 1 to 18 read on this motionfor summary judgment; cross motion to amend pleadings; Notice of Motion/ Order to Show Cause and supporting papers 1-9; Notice of Cross Motion and supporting papers 10 — 16; Answering Affidavits and supporting papers ___; Replying Affidavits and supporting papers 17-18; Other 19-21 (stipulations of adjournment); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion by defendants, Julio C. Pineda and Ruth L Pineda, pursuant to CPLR 3212 granting summary judgment is granted and the complaint is dismissed with prejudice; and it is further
ORDERED that the cross motion (002) by plaintiff for an order pursuant to CPLR 3025 granting plaintiff leave to serve an amended bill of particulars, dated November 29, 2007, for the purpose of supplementing his claim under sections 205-a and e of the General Municipal Law so as to set forth violations of Article I § 68-2 of the Town of Islip Code, has been rendered academic by dismissal of the complaint and is accordingly denied as moot.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Shawn Ryan, on February 7, 2005 at defendant's residence located at 184 Hilton Street, Brentwood, New York. Plaintiff asserts he, in his capacity of a volunteer fireman, responded to an emergency call at the above-referenced premises, entered said premises, and was injured when he was hit on the helmet by some debris, which caused his helmet to fall off, exposing his protective hood, which got wet, resulting in plaintiff's sustaining first and second degree burns on his neck, ears and face.
The complaint asserts a first cause of action sounding in common-law negligence wherein plaintiff claims Julio and Ruth Pineda (defendants) were negligent in maintaining the residence in a dangerous and defective condition, causing plaintiff to sustain serious injury; a second cause of action premised upon General Municipal Law § 205-a (GML), sounding in negligence wherein plaintiff asserts that while responding to an emergency call as a fire fighter, he was caused to sustain injury due to defendants' violation of Islip Town Code, Chapter 68, Zoning, Article I § 68-2.
Defendants now seek summary judgment dismissing the complaint. With reference to the common-law claim they allege that they are entitled to summary judgment because (1) the claim is barred since the injury sustained is related to the particular dangers a firefighter is expected to assume as part of his duties; (2) there is no evidence that defendants either created any alleged defect or had actual or constructive notice of a defect; and (3) defendants' alleged negligence was not the proximate cause of the plaintiff's injury. With reference to the negligence claim pursuant to GML, defendants claim that plaintiff failed to establish a prima facie case of liability under the statute because he failed to identify the statute or ordinance with which the defendants 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. Plaintiff has submitted an affirmation in opposition and a cross motion, and defendants a reply.
In his cross motion plaintiff seeks leave to amend the bill of particulars to reflect that (1) the defendants' use of the cellar as permanent habitable space is a violation of Article I § 68-2 of the Islip Town Code; (2) this code was in violation when the fire started; (3) the violation was a proximate cause of plaintiff's injuries; (4) the existence of an unattended candle in the cellar of defendants' premises constituted a dangerous and defective condition thereat; and (5) defendants' negligence was a proximate cause of plaintiff's injuries.
In support of said motion, plaintiff has submitted, inter alia, an attorney's affirmation, Fire Damage Report, proposed amended bill of particulars and a copy of the alleged section of the Islip Town Code that was violated by defendants, viz., Chapter 68, Article I. Defendants submit, inter alia, an attorney's affirmation, copies of the pleadings and defendant's answer, plaintiff's bill of particulars and transcripts of the deposition testimony of Shawn T. Ryan, Julio C. Pineda and Ruth L. Pineda.
On February 7, 2005, plaintiff, a volunteer fireman of approximately fourteen years, responded to a call at 184 Hilton Street, Brentwood. He arrived shortly after 2 a.m., reported to his captain and eventually was told to enter the house with some other firefighters. While inside manning the hose with two other men, something fell from the ceiling, knocking his helmet off of his head and exposing his protective hood. The hood got wet, and plaintiff sustained first and second degree (steam) burns on his neck, ears and head.
The house was/is owned by defendants. They and their seven children live(d) there, along with their grandchild and the grandchild's mother. After the fire was extinguished, it was determined that the point of origin was a basement bedroom, a room occupied by defendant's son Eric, his girlfriend Susan and their child. The mother, Susan, had lit a candle, fell asleep and awoke to the fire. Fortunately, all occupants were able to exit without harm. (Defendant's son Eric and wife were at work.)
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. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented ( Sillman v Twentieth Century-Fox Film Corporation , 3 NY2d 395, 165 NYS2d 498). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v N.Y. U. Medical Center , 64 NY2d 851, 487 NYS2d 316). Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers ( Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form ( Joseph P. Day Realty Corp. v Aeroxon Prods. , 148 AD2d 499, 538 NYS2d 843 [2nd Dept 1979]) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v Liberty Bus Co. , 79 AD2d 1014, 435 NYS2d 340 [2nd Dept 1981]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law ( Friends of Animals v Associated Fur Mfrs. , 46 NY2d 1065, 416 NYS2d 790).
In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In order to establish the third element, proximate cause, plaintiff must show that defendant's negligence was a substantial factor in bringing about the injury. If defendant's negligence were a substantial factor, it is considered to be a "proximate cause" even though other substantial factors may also have contributed to plaintiff's injury ( piegel v Fine Paint Co. , 2006 NY Misc LEXIS 2549, 236 NYLJ 51 [Sup Ct Nassau County 2006]). Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party ( see, Espinal v Melville Snow Contractors, Inc. , 98 NY2d 136, 746 NYS2d 120; Darby v Compagnie Natl. Air France , 96 NY2d 343, 728 NYS2d 731).
"It is established law in this State that a firefighter injured in the line of duty is not entitled to recover for the injuries sustained on the theory of common law negligence" ( Bellantoni v City of New York , NYLJ, 7/18/95, p. 27, col.3). In other words, firefighters are barred from recovering damages for injuries resulting from the special risks inherent in the duties they are called to perform ( See, Schembri v City of New York , NYLJ, 2/27/96, p. 29, col.3). The rationale for this rule, known as the "firefighter's rule," is that firefighters and police officers are trained and compensated to confront dangers and are therefore precluded from recovering damages for the very situations that create a need for their services ( see, Zanghi v Niagara Frontier transportation Comm. , 85 NY2d 423, 626 NYS2d 23). Further, "the firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury." Therefore, when firefighters act in furtherance of their duties which expose them to a heightened risk of sustaining injury, he or she may not recover damages for common-law negligence ( See, supra @ 436).
Here, plaintiff responded to a house fire, and while carrying out his duties as a volunteer firefighter, sustained personal injuries. Under the "firefighter's rule," plaintiff is barred from maintaining a common-law negligence claim. The risk of debris falling from a ceiling, the accumulation of smoke, etc., are those types of hazards faced by a firefighter in his ordinary duties ( see, Murphy v Mount Sinai Hospital , 202 AD2d 238, 608 NYS2d 448 [1st Dept 1994]).
General Municipal Law § 205-a (GML § 205-a), however, allows for a cause of action for firefighters or representatives of deceased firefighters where an injury "occurs directly or indirectly as a result of any neglect . . . or negligence of any person or persons in failing to comply with the requirements of any statutes, ordinances, [or] rules . . ." during the discharge of his or her duty (GML § 205-a; see, Zanghi v Niagara Frontier Transp. Comm'n , supra, 85 NY 423). In enacting GML § 205-a, the legislature intended to protect firefighters from additional dangers resulting from fire prevention code violations and other statutory violations without the application of the assumption of risk doctrine ( see, Mullen v Zoebe , Inc., 86 NY2d 135, 630 NYS2d 269).
Here, plaintiff contends that he may maintain a cause of action pursuant to GML § 205-a because defendants violated a certain statutory building code of the Town of Islip, viz., Article I § 68-2. Plaintiff, however, fails to establish any facts or offer any proof that the defendants violated said section, even considering his cross motion and amended pleadings. Defendants were never given a summons or citation from anyone in the Town of Islip, viz., no one in the building department, fire commissioner's office, or anyone acting on behalf of the Town issued them a summons for any alleged violation. As a result, plaintiff has, inter alia, failed to establish that the room in the lower level of the house was in violation of said section as no evidentiary proof has been submitted to aid in establishing that the room was in fact located in a cellar/basement or that the lower level of the structure was less than 50% of the lowest level above grade. However, assuming arguendo that the room was being used in violation of said code, there is nothing to substantiate plaintiff's claim that a burning "unattended" candle in a room of a house, even if the room was in violation of the Town Code, was the proximate cause of plaintiff's injuries, as there is nothing to substantiate that the fire's point of origin, the burning candle, was directly or indirectly the result of negligent conduct on behalf of the defendants due to the fact that they violated said section of the Town Code. Plainly put, there is no reasonable or practical connection between the plaintiff's injuries and the alleged violation ( see, Dillon v City of New York , 238 AD2d 302, 656 NYS2d 51 [2nd Dept 1997]). Additionally, there is no proof that defendants were negligent in creating a so-called dangerous situation, as they neither had actual knowledge nor constructive knowledge that there was an unattended candle being burned in their home.
Accordingly, defendants' motion for summary judgment dismissing the complaint is granted, and plaintiff's cross motion to amend the bill of particulars, having been rendered academic by dismissal of the complaint, is denied as moot.