| Donna Prince L. v Waters |
| 2008 NY Slip Op 00879 [48 AD3d 1137] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Donna Prince L., Individually and as Parent and Natural Guardianof Philip Lawrence L., an Infant, and as Administratrix of the Estate of Timothy John L.,Deceased, Appellant, v Mike Waters, as Fire Control Coordinator of the County of Onondaga, etal., Respondents. |
—[*1] Anthony P. Rivizzigno, County Attorney, Syracuse (Karen A. Bleskoski of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.),entered February 2, 2007 in an action for, inter alia, wrongful death. The order granteddefendants' motion for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the General Municipal Law § 205-a cause ofaction and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for, inter alia, the wrongfuldeath of her husband (decedent). Decedent, a volunteer firefighter, was killed while fighting afire that started in the basement of a house located in the Town of Pompey. Plaintiff alleged thatdefendant County of Onondaga (County) is liable pursuant to the doctrine of respondeat superiorfor decedent's death, which was allegedly caused by the negligence of defendant Mike Waters, asthe County's Fire Control Coordinator, and that defendants are also liable pursuant to GeneralMunicipal Law § 205-a. Defendants moved for summary judgment dismissing thecomplaint, and Supreme Court granted the motion. We note at the outset that plaintiff hasabandoned the wrongful death cause of action, inasmuch as she failed to oppose that part ofdefendants' motion with respect to it and, indeed, has not addressed it on appeal (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]). We agree with plaintiff, however, thatthe court erred in granting that part of defendants' motion for summary judgment dismissing theGeneral Municipal Law § 205-a cause of action, and we therefore modify the orderaccordingly.
To establish their entitlement to summary judgment dismissing the General Municipal Law§ 205-a cause of action, defendants had to establish as a matter of law "either that [they]did [*2]not negligently violate any relevant government provisionor that, if [they] did, the violation did not directly or indirectly cause plaintiff's injuries"(Giuffrida v Citibank Corp., 100 NY2d 72, 82 [2003]). The type of statute, ordinance orregulation that may give rise to liability pursuant to General Municipal Law § 205-a is one"found in a 'well-developed body of law and regulation' that 'imposes clear duties' " (Galapo vCity of New York, 95 NY2d 568, 574 [2000]).
According to plaintiff, defendants failed to comply with the National InteragencyIncident Management System Incident Command System (NIIMS-ICS), adopted in New York byexecutive order as the state standard emergency command and control system (see 9NYCRR 5.26). Contrary to defendants' contention, plaintiff thereby identified a relevantgovernment provision that may give rise to liability under General Municipal Law § 205-a.The NIIMS-ICS may form the predicate for liability pursuant to section 205-a because it "'mandates a reasonably defined and precedentially developed standard of care,' and does notrequire the trier of fact to 'second-guess [a firefighter's] split-second weighing of choices' " (Williams v City of New York, 2 NY3d352, 364-365 [2004]).We further conclude on the record before us that there is an issue of fact whetherWaters' alleged violation of the NIIMS-ICS caused decedent's death, i.e., whether there is any "'practical or reasonable connection' " between the alleged violation and decedent's death(Giuffrida, 100 NY2d at 81). Waters testified at his deposition that, as the County's FireControl Coordinator, he has no decision-making power with respect to fire suppression unlessthat role is delegated to him by the Incident Commander and that, pursuant to the NIIMS-ICS, itwas his duty to report to either the Incident Commander or operations officer upon his arrival at afire. Waters further testified, however, that he did not speak to anyone upon arriving at the sceneof the fire and instead decided to take a "quick look" at the fire. Waters then stated to decedentand his fellow firefighters, "We're going to have to get a line in here." While one of thefirefighters testified at his deposition that Waters never indicated to him where in the house hewanted the firefighters to position themselves, that testimony merely raises an issue of factwhether Waters gave an order in violation of the NIIMS-ICS. Further, Waters testified at hisdeposition that command officers and chiefs wear white hats at the scene of a fire and, althoughWaters testified that he was wearing a black hat on the night of the fire, other firefighters testifiedthat he was wearing a white hat, thereby signifying that he had command responsibilities. Wethus conclude that defendants are not entitled to summary judgment dismissing the GeneralMunicipal Law § 205-a cause of action. Present—Scudder, P.J., Gorski, Lunn,Fahey and Peradotto, JJ.