| Cotter v Pal & Lee Inc. |
| 2011 NY Slip Op 05976 [86 AD3d 463] |
| July 21, 2011 |
| Appellate Division, First Department |
| Thomas Cotter et al., Appellants, v Pal & Lee Inc. et al.,Respondents, et al., Defendants. |
—[*1] Gannon, Lawrence & Rosenfarb, New York (Lisa L. Gokhulsingh of counsel), forMohammed Faiz, respondent. Miranda Sambursky Slone Sklarin Verneniotis, LLP, Elmsford (Michael V. Longo ofcounsel), for Pal & Lee Inc., respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered October 15, 2009,which, to the extent appealed from, granted defendants Pal & Lee Inc.'s and Faiz's motions forsummary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Thomas Cotter, a New York City firefighter, injured his knee and thumb onSeptember 15, 2005 while extinguishing a fire at defendant Mohammed Faiz's (Faiz) KennedyFried Chicken restaurant. Defendant Pal & Lee Inc. (Pal) owns the five-story building where therestaurant is located.
Plaintiffs commenced this personal injury action against Pal and Faiz on May 4, 2006,alleging that defendants' violation of various sections of the Administrative Code of the City ofNew York resulted in a hole in the floor, accumulated debris and other unsafeconditions.[FN1]They [*2]claim that these violations directly or indirectly causedplaintiff's injuries and that he is therefore entitled to recover under General Municipal Law§ 205-a.[FN2]
Faiz testified at deposition that he leased the premises in 1997, and that both he and theowners have made repairs since then. He testified that when he entered into the lease, there wasan "X" inside a square spray-painted on the exterior, but that he did not know what the symboldenoted. Faiz testified that shortly after taking possession he renovated the ground floor, addingnew support beams, tile flooring, fire-suppression and exhaust systems, and equipped thepremises with fire extinguishers. The floors above the restaurant remained vacant.
Faiz further testified that the restaurant had been cleaned three days before the fire inanticipation of an inspection by the City Health Department. He testified that the restaurant wasinspected routinely by the Health Department, twice annually by the New York City FireDepartment (FDNY), and intermittently by the Building Department, and that no violations hadbeen issued by the Building Department. Faiz further testified that he did not observe any holesor cracks in the floor when he closed the restaurant at 1:00 a.m. on the night of the fire.
Plaintiff testified at deposition that at approximately 2:00 a.m., his station responded to areport of a fire at Faiz's restaurant. When he arrived at the fire, he observed the spray-painted "X"on the exterior of the building, which he understood to mean that the building had experienced aprior fire, the roof was "open," and that he should be on his "A" game. He testified that he andtwo other firefighters entered the building carrying a hose spraying "tons of water."
Plaintiff testified that he could not see due to the heavy smoke and had to climb over"debris." He further testified that his foot became lodged in something that "just wasn't part of thefloor." Although he characterized the condition as a hole, he admitted that he did not see anyholes and did not "know for a fact" what trapped his foot. Plaintiff said he was "sure" that someof the obstacles he encountered were restaurant "fixtures" strewn "all over the place" by the hosewater, which had enough velocity to "move a couch" or "blow a hole in a tin roof."
The two firefighters who accompanied plaintiff were deposed and testified that they toocould not see due to the heavy smoke, but that there were tables, chairs, and booths knockeddown. One of them also fell, but he was uncertain as to what caused him to fall. Afterapproximately 10 minutes in the building, the men were called out due to the heavy firecondition, and efforts to extinguish the fire continued from outside the building.
Post-fire inspection reports were prepared by the FDNY Fire Chief who was on duty thenight of the fire, a fire marshal, and the fire inspector hired by Faiz's insurer. The inspectors didnot report holes in the area of the restaurant where the firefighters were located. The reports didnot agree on the point of origination or cause of the fire.
The FDNY Fire Chief testified that the "X" on the building is one of several symbols used bythe fire department to indicate the stability and occupancy of a building. He explained that an "X"indicates that the building is vacant and firefighting operations should be conducted [*3]from the exterior. He testified that an owner may make repairs tothe premises after the building is marked and that the FDNY does not inspect "marked" buildingsto see if repairs have been made. The FDNY Fire Chief testified that although there was an "X"on defendants' building at the time of the fire, such marking was an error since the first floor wasoccupied.
Following discovery, Pal and Faiz moved for summary judgment dismissing the complainton grounds that they did not violate any code section or statute with a reasonable connection toCotter's claimed injuries, and that plaintiffs' section 205-a claim is speculative. In opposition,plaintiffs offered, inter alia, the report of their expert who opined that defendants failed tocomply with Administrative Code, Building Code and Housing Maintenance Code provisions, asalleged by the pleadings, and that the violations constituted a "direct cause" of Cotter's injuries.However, the expert relied only on the documents presented to the court and did not personallyinspect the premises.
The motion court granted defendants' summary judgment motions, concluding that plaintiffsfailed to "make a prima facie case of negligence under [General Municipal Law] § 205-aagainst either defendant." The motion court found that plaintiffs' allegation of holes in the floorand accumulated debris was speculative, and there was no evidence that exacerbation of theintensity or spread of the fire caused plaintiff's injuries.
Plaintiffs appeal on the grounds that the motion court erroneously applied the common-lawstandard of causation rather than the statutory standard, and that there are material questions offact as to whether defendants violated provisions of the Administrative Code. For the reasons setforth below, we affirm the motion court's summary judgment dismissal.
General Municipal Law § 205-a provides protection to a firefighter injured as a resultof a building code violation that "enlarges the hazard of his task by diminishing fire safety orprevention" (Meyer, 258 AD2d at 316). To make out a valid claim, a plaintiff firefightermust identify the statute or ordinance that defendant violated, describe the manner in which hewas injured, and set forth relevant facts from which it may be inferred that the defendant'snegligence directly or indirectly caused him harm (Zvinys v Richfield Inv. Co., 25 AD3d 358, 359 [2006], lvdenied 7 NY3d 706 [2006], quoting Zanghi v Niagara Frontier Transp. Commn., 85NY2d 423, 441 [1995]). While a plaintiff need only establish a practical or reasonableconnection between the statutory or regulatory violation and the claimed injury (Giuffrida vCitibank Corp., 100 NY2d 72, 81 [2003]), the causation element will not be found where theconnection is too speculative to support General Municipal Law § 205-a liability (see e.g. Downey v Beatrice Epstein FamilyPartnership, L.P., 48 AD3d 616 [2008], lv denied 11 NY3d 702 [2008];Zvinys, 25 AD3d at 359; Kenavan v City of New York, 267 AD2d 353, 356[1999], lv denied 95 NY2d 756 [2000]).
In this case, defendants met their initial burden by presenting deposition testimony, post-fireinspection reports, and other evidence indicating that there were no violations, specifically holesin the floor and accumulated debris, that directly caused plaintiff's injuries, or that indirectlycaused plaintiff's injuries by increasing the inherent dangers of firefighting (see e.g.Downey, 48 AD3d at 619; Zvinys, 25 AD3d at 359-360). Plaintiffs failed to rebutthis showing.
Plaintiffs' assertion that a hole in the floor directly caused the injuries is pure conjecture.Plaintiff conceded that he could not see the floor and does not know what trapped his foot. Thefirefighters who entered the building with him were similarly unable to describe the condition ofthe floor. Plaintiffs' allegation that defendants allowed debris to accumulate, causing him to tripand fall, is speculative. By his own admission, plaintiff cannot say that the debris did not consistof those items normally found in a restaurant, which, rather than being negligently placed by[*4]defendants, had been knocked down by the force of the sprayfrom the fire hose employed in suppressing the fire.
Plaintiffs' assertion that the "X" marked on the facade is evidence of code violations iswholly unsupported by the record. The FDNY Chief testified that such symbols may not beaccurate, the buildings are not reinspected, and indeed that the symbol was incorrect in this casesince the building had been occupied for eight years.
There is no record evidence of any violations for unsealed openings, lack of requisitefireproofing, and lack of fire-detection equipment, or lack of extinguishment or suppressionsystems issued against the building, and plaintiffs' expert did not personally inspect the premisesfor violations (see e.g. Zvinys, 25 AD3d at 359-360). However, even were we toaccept that such violations did exist, plaintiffs' claim that they exacerbated the smoke conditionand spread of the fire, indirectly causing plaintiff injury, is speculative.
Plaintiffs' expert does not provide any explanation linking the alleged sealing andfireproofing violations to plaintiff's injuries, and his bare conclusions that they caused plaintiff'sinjuries do not raise a triable issue of fact (id.). Furthermore, the inspection reports do notestablish where or how the fire started, and, as the motion court noted, the fire and smoke were"already intense" by the time plaintiff arrived. Thus, there is no evidence, nor can it be logicallyinferred, that plaintiff's risk of harm was increased by the spread or intensification of fire orsmoke resulting from alleged violations (see e.g. Zvinys, 25 AD3d at 359; cf. Foiles v V.L.J. Constr. Corp., 17AD3d 297 [2005]).
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.
Footnote 1: Administrative Code former§ 27-127 generally imposes a duty to keep the premises safe, and requires that "[a]llservice equipment, means of egress, [and] devices . . . shall be maintained in goodworking condition" (repealed in 2007 and recodified at Administrative Code § 28-301.1).Other sections require sealing window and/or exterior wall openings; use of "fire-stopping"structure/materials (such as interior doors, ceilings, walls, floors and shafts); and ensuring thataccess areas, exits, and passageways are visible and free of obstructions.
Footnote 2: General Municipal Law §205-a, the statutory exception to the "firefighter's rule," permits a plaintiff firefighter to bring acause of action when his injury occurs as a result of a defendant's failure to comply with a safetystatute or regulation and the violation increases the risks associated with firefighting (Meyer vMoreno, 258 AD2d 315 [1999]; Scherrer v Time Equities, 218 AD2d 116, 122[1995]).