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Anthony MARSILLO, Plaintiff, v. The CITY OF NEW YORK, Defendant.
The motion (No. 587) of defendant, the City of New York (“City”), and the cross motion (No. 1958) of plaintiff Anthony Marsillo, both of which are for summary judgment, are decided as follows.
This matter arises out of an August 2, 2002 trip-and-fall on an allegedly defective step leading to the entrance of a building leased by the City at 111 Canal Street, Staten Island, New York. As is relevant, plaintiff, a sergeant at the 120th Precinct, claims to have sustained extensive personal injuries upon responding to a call from a fellow officer advising of a flood at the subject location. At his General Municipal Law § 50–h hearing, plaintiff testified that he drove a police van to 111 Canal Street, pulled the van “flush” or adjacent to the front steps (which were then covered with water and sewage), and stepped onto the top step. At this point, plaintiff's left foot allegedly “went into a seam of the top step where there was concrete missing ․[and] got caught in the crevice.” More specifically, plaintiff stated that his left foot “got lodged in that crack ․ where there was a gap in the seam because there was concrete missing and then [he] fell going forward” (see City's Exhibit G, pp. 25–26).
In support of its motion to dismiss, the City argues that plaintiff's cause of action for common-law negligence is barred by the so-called “firefighter's rule” since the accident occurred while performing an act “taken in furtherance of a specific police or firefighting function [which] exposed the officer to a heightened risk of sustaining the particular injury” (Zanghi v. Niagara Frontier Transp. Comm., 85 N.Y.2d 423, 439, 626 N.Y.S.2d 23, 649 N.E.2d 1167). Moreover, it is claimed that plaintiff cannot sustain his General Municipal Law § 205–e cause of action, since he cannot prove that non-compliance with a well developed body of law or regulation was the cause of his injury. Finally, the City claims that the Administrative Code sections cited by plaintiff cannot serve as a predicate for liability under General Municipal Law § 205–e.
It is well settled that the firefighter's rule bars only those claims of injury that arise out of the specific dangers associated with police work (see Delio v. City of New York, 8 A.D.3d 325, 777 N.Y.S.2d 911). Where the injuries sustained in the line-of-duty “are wholly unrelated to the assumed risks of police duty”, the common-law recovery remains viable (Cooper v. City of New York, 81 N.Y.2d 584, 591, 601 N.Y.S.2d 432, 619 N.E.2d 369; see Tighe v. City of Yonkers, 284 A.D.2d 325, 725 N.Y.S.2d 384).
Here, it is the opinion of this Court that plaintiff's cause of action for common-law negligence must be dismissed, as it is undisputed that the trip-and-fall occurred while plaintiff was responding to an emergency call from a brother officer. It cannot be gainsaid that part of the risk subsumed by plaintiff's official duties was the possibility of injury while rushing to the scene of an emergency (see Cooper v. City of New York, 81 N.Y.2d at 589–591, 601 N.Y.S.2d 432, 619 N.E.2d 369).
Contrariwise, that portion of the City's motion which seeks dismissal of plaintiff's General Municipal Law § 205–e cause of action is denied. General Municipal Law § 205–e was enacted to provide a statutory remedy to police officers who are injured in the line-of-duty as the result of a third party's “negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Galapo v. City of New York, 95 N.Y.2d 568, 574, 721 N.Y.S.2d 857, 744 N.E.2d 685 [internal quotation marks omitted ] ). To make out a valid claim under General Municipal Law § 205–e, a plaintiff must “[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which [he or she] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm” (Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d at 441, 626 N.Y.S.2d 23, 649 N.E.2d 1167). On a motion to dismiss, however, it is defendant which bears the initial burden of showing that it did not negligently violate any relevant regulatory provision or, if it did, that the violation did not directly or indirectly cause plaintiff's injuries. It is only if defendant sustains this burden that the plaintiff must raise a triable issue of fact as to the alleged violation and its causal relationship to the injury (see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 82, 760 N.Y.S.2d 397, 790 N.E.2d 772).
Here, the City is correct in asserting that the alleged violation of New York City Administrative Code §§ 27–127 and 27–128 constitute an insufficient predicate for liability under § 205–e, as these sections have consistently been applied to structural or design defects (see e.g. Beck v. Woodward Affiliates, 226 A.D.2d 328, 330, 640 N.Y.S.2d 205). Clearly, the opinion of plaintiff's expert to the effect that the open joint between the adjacent steps was likely caused by a succession of thaw and freeze cycles over a two year period (see Plaintiff's Exhibit B) does not establish the presence of a structural or design defect. Moreover, these Code provisions are inapplicable to lessees such as the City (id. at 330, 640 N.Y.S.2d 205). Equally unavailing are the alleged violations of Administrative Code §§ 27–375(e)(2) [Risers and Treads]; 27–375(f) [Guards and Handrails]; 27–376 [Exterior Stairs]; and 27–377 [Ramps]. Finally, plaintiff's claimed violation of Article 18 of the Executive Law, the New York State Uniform Fire Prevention and Building Code Act (“Act”), will not support a cause of action under § 205(e) where, as here, he has failed to cite a single section of the Act that was purportedly violated by the City.
However, plaintiff is correct to advance the purported violation of § 27–a (3)(a)(1) of the Labor Law in support of his General Municipal Law § 205–e cause of action. That section provides that “[e]very employer shall ․ furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees”. Patently, the duty to provide workers with a place of employment that is reasonably free from tripping hazards devolves from “a well-developed body of law containing particularized mandates or imposing a clear legal duty” (Link v. City of New York, 34 A.D.3d 757, 758, 825 N.Y.S.2d 518, quoting Abbadessa v. City of New York, 269 A.D.2d 341, 341–342, 702 N.Y.S.2d 869 [internal quotation marks omitted ] ). Thus, so much of the City's motion as seeks the dismissal of plaintiff's General Municipal Law § 205–e cause of action must be denied.
As for plaintiff's cross motion to strike the City's affirmative defenses and for summary judgment on the issue of liability under General Municipal Law § 205–e, the photographs and explanations furnished by plaintiff's expert are insufficient to compel the conclusion that the alleged defect was a long standing condition. Rather, the testimony of the City's witness, Ms. Blackmun, as to her regular inspections of the subject staircase serves to raise a triable issue of fact as to the City's actual or constructive notice of the alleged defect (cf. Campbell v. City of New York, 31 A.D.3d 594, 819 N.Y.S.2d 294).
Accordingly, it is
ORDERED, that the motion for summary judgment of the defendant the City of New York is granted to the extent that plaintiff's cause of action for common-law negligence is severed and dismissed; and it is further
ORDERED, that so much of plaintiff's General Municipal Law § 205–e cause of action as is predicated upon alleged violations of the New York City Administrative Code and the Executive Law may not be asserted at trial; and it is further
ORDERED, that the balance of the motions are denied; and it is further
ORDERED, that the Clerk shall enter judgment accordingly.
The foregoing constitutes the Decision and Order of the Court.
THOMAS P. ALIOTTA, J.
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Decided: September 14, 2007
Court: Supreme Court, Richmond County, New York.
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