Opinion
December 31, 1998
Appeal from the Supreme Court, Queens County (Polizzi, J.).
Ordered that the order is modified by (1) deleting the provision thereof adhering to so much of the order dated May 14, 1997, as granted that branch of the motion of the defendant Mindy Trepel which was for summary judgment dismissing the cause of action to recover damages pursuant to General Municipal Law § 205-a, and substituting therefor a provision denying that branch of the motion, and (2) deleting the provision thereof adhering to so much of the order dated May 14, 1997, as denied that branch of the plaintiffs' cross motion which was for leave to amend their bill of particulars and the complaint to assert a cause of action to recover damages pursuant to General Municipal Law § 205-a, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from and reviewed, without costs or disbursements.
The court properly granted the cross motion of the City of New York for summary judgment dismissing the plaintiffs' common-law cause of action insofar as asserted against the defendant City of New York since the plaintiff, a firefighter, was injured while acting in furtherance of a specific fire-fighting function which exposed him to a heightened risk of sustaining the particular injury ( see, Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 439; Byrnes v. City of New York, 249 A.D.2d 352; Schembri v. City of New York, 240 A.D.2d 722).
Further, the court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for leave to amend the bill of particulars and the complaint to assert a cause of action against the City under General Municipal Law § 205-a. The internal Fire Department rule which the plaintiffs claim was violated cannot serve as a predicate for liability under General Municipal Law § 205-a since it neither imposes a clear legal duty nor constitutes part of a well-developed body of law and regulation with positive commands that mandate the performance or nonperformance of specific acts ( see, Desmond v. City of New York, 88 N.Y.2d 455, 464; Von Ancken v. City of New York, 245 A.D.2d 286).
However, the court improvidently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for leave to amend their bill of particulars and the complaint to assert a cause of action to recover damages pursuant to General Municipal Law § 205-a against the defendant Mindy Trepel ( see, Banfi Prods. Corp. v. Gentile, 236 A.D.2d 348; see also, Roberts v. Alexander's, Inc., 224 A.D.2d 677, 678). The court should have allowed the plaintiffs to amend their bill of particulars and the complaint to identify the statutes or ordinances which Mindy Trepel allegedly violated, and should not have granted that branch of Trepel's motion which was to dismiss the plaintiffs' cause of action to recover damages pursuant to General Municipal Law § 205-a on the ground that the plaintiffs failed to identify such statutes or ordinances.
The plaintiffs' common-law cause of action against Mindy Trepel is viable in light of the 1996 enactment of General Obligations Law § 11-106 (L 1996, ch 703) ( see, Gregory v. Armon, 240 A.D.2d 703; Carlson v. Berg, 240 A.D.2d 692; Jones v. Centerearch Assocs., 235 A.D.2d 397; Sikes v. Reliance Fed. Say., 234 A.D.2d 446; Gibbons v. Ostrow, 234 A.D.2d 415).
The parties' remaining contentions are without merit.
Bracken, J. P., Copertino, Thompson and McGinity, JJ., concur.