| Fisher v City of New York |
| 2008 NY Slip Op 01439 [48 AD3d 303] |
| February 19, 2008 |
| Appellate Division, First Department |
| Stephen G. Fisher, Jr., et al.,Appellants-Respondents, v City of New York, Respondent-Appellant, and Thirty East30th Street, LLC, et al., Respondents, et al., Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Susan Choi-Hausman ofcounsel), for respondent-appellant.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 23, 2007,which, inter alia, in effect granted plaintiffs leave to amend their complaint so as to allegeviolations of 29 CFR 1910.134 (g) as statutory predicates in support of their General MunicipalLaw § 205-a cause of action, otherwise granted that branch of the City's motion forsummary judgment dismissing the complaint, and denied that branch of the City's motion forsummary judgment dismissing the cross claims for indemnification asserted by defendantsproperty owner, managing agent and occupant (the hotel defendants), unanimously affirmed,without costs.
The motion court correctly concluded that the statutory and regulatory provisions relied onby plaintiff firefighter as predicates for his claim under the "firefighter rule" (General MunicipalLaw § 205-a) are inapplicable, or that the record does not raise any triable issues of fact asto the violation of those provisions. Specifically, Labor Law § 27-a is inapplicable becauseplaintiff's respiratory injury, which was caused when a loose screw on his respirator's face masksuddenly gave way, allowing a head strap to release and resulting in his inhalation of smoke at afire scene inside defendant hotel, did not arise from a recognized hazard in the workplace. Therelevance of federal OSHA regulation 29 CFR 1910.133, concerning "eye and face protection,"to plaintiff's respiratory injury, is not apparent, and plaintiff's argument that the City failed toprovide necessary protective equipment, i.e., a functional respirator, and to properly train him inits inspection and maintenance, as required by 29 CFR 1910.132, is refuted by the record,including plaintiff's deposition testimony indicating that he received extensive training in theseareas. Nor is there evidence that any negligence by the City in issuing or inspecting plaintiff'sface mask contributed to plaintiff's injury (see Lustenring v 98-100 Realty, 1 AD3d 574, 578 [2003], lvdismissed and [*2]denied 2 NY3d 791 [2004]; Zvinys v Richfield Inv. Co., 25 AD3d358 [2006], lv denied 7 NY3d 706 [2006]), where plaintiff testified that he inspectedhis face mask twice daily, found nothing wrong with it on the day it malfunctioned, and had putthe mask on without incident on many occasions, and other testimony established that if afirefighter's inspection uncovered a defect in the gear, the firefighter was obligated to report thedefect to a commanding officer so that the mask would be taken out of service. These samecircumstances establish that there were no violations of the other OSHA regulations cited byplaintiff, namely, 29 CFR 1910.155 and 1910.156.
However, the motion court, properly conforming the pleadings to evidence that plaintiff wasleft alone at the fire scene for several minutes, and that an attempt to notify a superior ofplaintiff's defective equipment did not generate a response, correctly sustained plaintiff's GeneralMunicipal Law § 205-a claim on the basis of violations of OSHA regulations not pleadedby plaintiff, namely, 29 CFR 1910.134 (g) (4) (i), (g) (2) (iii) and (g) (2) (ii) (B) (CPLR 3025[c]). The City cannot claim surprise or prejudice where the opposition papers raised two of theseregulations and the third regulation, raised by the motion court sua sponte, is closely related tothe other two. Leave to amend the complaint is appropriate in these circumstances (cf. Foley v City of New York, 43AD3d 702, 704 [2007]).
That branch of the City's motion seeking to dismiss the hotel defendants' indemnificationclaims was properly denied because, although the City owed these defendants no duty, a basis forindemnification might exist if a jury were to find that the fire violation issued for anonfunctioning standpipe in the premises was not a substantial factor in causing plaintiff's injury.Concur—Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.