MEYER v. MORENO (1999)

Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 26, 1998, which denied defendant building owners' motion for summary judgment dismissing plaintiff firefighter's complaint, unanimously affirmed, without costs.

 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, 626 N.Y.S.2d 23, 649 N.E.2d 1167).   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, 630 N.Y.S.2d 269, 654 N.E.2d 90).   To the extent that notice of a violation is ever required (see, Lusenskas v. Axelrod, 183 A.D.2d 244, 592 N.Y.S.2d 685, appeal dismissed 81 N.Y.2d 300, 598 N.Y.S.2d 166, 614 N.E.2d 729), 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 facts.

 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 factfinder.

The Decision and Order of this Court entered herein on November 17, 1998 is hereby recalled and vacated.   See 258 A.D.2d 315, 684 N.Y.S.2d 773, decided simultaneously herewith.

MEMORANDUM DECISION.