| Downey v Beatrice Epstein Family Partnership, L.P. |
| 2008 NY Slip Op 01494 [48 AD3d 616] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Paul M. Downey et al., Appellants, v Beatrice EpsteinFamily Partnership, L.P., et al., Respondents. |
—[*1] Gannon, Rosenfarb & Moskowitz (Max W. Gershweir, New York, N.Y. [Jennifer B.Ettenger] of counsel), for respondent Beatrice Epstein Family Partnership, L.P. Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell and Dennis J. Dozis ofcounsel), for respondent Alexander Tregubov.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Harkavy, J.), dated August 4, 2006, which granted theseparate motions of the defendants Beatrice Epstein Family Partnership, L.P., and AlexanderTregubov for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff Paul M. Downey, a New York City firefighter (hereinafter Downey), allegedlywas injured while conducting fire search operations in a second floor apartment of a buildingowned by the defendant Beatrice Epstein Partnership, L.P. (hereinafter the Epstein Partnership).It was later determined that the fire originated in a first floor apartment which had been convertedinto a dentist's office, and which had been leased by the Epstein Partnership to the defendantAlexander Tregubov. Downey and his wife (asserting derivative causes of action) commencedthis action to recover damages for personal injuries pursuant to General Municipal Law §205-a, and arising from [*2]common-law negligence. Theplaintiffs alleged that the defendants had converted the first floor apartment into a dentist's officewithout obtaining the required approvals and permits, that such use was in violation of thebuilding's certificate of occupancy, and that there were no working smoke detectors in the office,all in violation of various statutes and building code provisions. The Epstein Partnership andTregubov each moved for summary judgment dismissing the complaint insofar as assertedagainst them. The Supreme Court granted the motions. We affirm.
In general, in order to state a cause of action sounding in negligence with respect to themaintenance of real property, a plaintiff must demonstrate that a defendant's breach of the duty tomaintain the premises in a reasonably safe condition was a proximate cause of his or her damages(see Stecher v M & T Bank Corp.,44 AD3d 930 [2007]). In order for a firefighter to state a cause of action pursuant toGeneral Municipal Law § 205-a, he or she "must '[1] identify the statute or ordinance withwhich the defendant failed to comply, [2] describe the manner in which the firefighter wasinjured, and [3] set forth those facts from which it may be inferred that the defendant's negligencedirectly or indirectly caused the harm to the firefighter' " (Giuffrida v Citibank Corp., 100NY2d 72, 79 [2003], quoting Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423,441 [1995]; see Doherty v Sparacio,35 AD3d 530 [2006]; Zvinys vRichfield Inv. Co., 25 AD3d 358 [2006]; Driscoll v Tower Assoc., 16 AD3d 311 [2005]). To satisfy the"indirect" standard, a plaintiff need only establish a "reasonable or practical connection" betweenthe statutory or regulatory violation and the claimed injury (Giuffrida v Citibank Corp.,100 NY2d at 75; see Doherty vSparacio, 35 AD3d 530 [2006]). Here, in support of their respective motions forsummary judgment, the defendants each demonstrated, prima facie, that Downey's injuries werenot proximately caused by their breach of the duty to maintain the premises in a reasonably safecondition, and were not directly or indirectly caused by the alleged statutory and code violations(see Giuffrida v Citibank Corp., 100 NY2d 72, 75 [2003]; Doherty v Sparacio, 35 AD3d 530[2006]; Zvinys v Richfield Inv. Co.,25 AD3d 358 [2006]; Driscollv Tower Assoc., 16 AD3d 311 [2005]). The evidence submitted by the defendants tomake this prima facie showing included, inter alia, the deposition testimony of the superintendentof the building, who stated that there was a working smoke detector in the subject office at thetime in question.
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs reliedprimarily on the affidavit of their expert, fire safety consultant Michael Cronin. With respect tothe illegal conversion of the first floor apartment into a dentist's office, Cronin catalogued thevarious code provisions that were allegedly violated, and stated that the "purpose behind theissuance of certificates of occupancy is to prevent unanticipated uses and sub-standardconstruction that makes it more likely that serious fires will occur and that will make firefightingoperations more dangerous." However, Cronin did not opine that the conversion at issue madethe fire more likely or firefighting operations more dangerous, or that the alleged violations wereotherwise a direct, indirect, or proximate cause of Downey's injuries.
With respect to the alleged lack of a working smoke detector, Cronin relied on a fire incidentreport generated by the Fire Department of New York. However, the expert for the EpsteinPartnership, Frank Valenti, a former New York City Fire Marshal, opined that the incident reportwas not reliable evidence of whether a smoke detector was absent from the subject office prior tothe fire, particularly in light of the express testimony to the contrary, because "[o]ftentimes, thefire detector is knocked down during the course of firefighting efforts at a location and therefore,when an individual creating the incident report views the scene after the incident, they[sic] have no way of knowing that there was, in fact, a working smoke detector." Indeed,Valenti stated that, in his experience, there had been various occasions when an incident reportindicated the absence of a [*3]smoke detector when one was"clearly present." Here, Valenti noted, the incident report indicates that one ladder company "'overhauled' the fire apartment. This could and in many instances does include knocking down aworking smoke detector, which could then either be melted by the flames or destroyed or lostwithin the debris created during the firefighting efforts." On this record, the incident report wasinsufficient to raise a triable issue of fact as to whether the defendants failed to equip the subjectoffice with a working smoke detector prior to the fire.
In any event, Cronin's affidavit was insufficient to raise a triable issue of fact as to whetherthe alleged absence of a smoke detector was a direct, indirect, or proximate cause of the allegeddamages. Cronin opined that the absence of a smoke detector resulted in two factors whichdelayed the response to the fire and, consequently, caused Downey's injuries. First, he arguedthat, had there been a working smoke detector, "the occupants of the building would have beenalerted of the fire earlier and [would have] been able to notify the fire department at a muchearlier stage of the fire." Second, he argued that, had the subject office, which had not beenoccupied for the two days preceding the fire, remained a residence, "the tenant would havebecome aware of this fire much sooner than the case here." As a consequence, he concluded, theplaintiff's ladder company, which was the first to arrive, and which arrived two minutes prior tothe next company to arrive, would have been assigned to the subject first floor office, rather thanto the second floor apartment where Downey was injured. We find this testimony to bespeculative and, in any event, it propounds a theory of causation too attenuated to raise a triableissue of fact as to whether the absence of a working smoke detector in the subject office was adirect, indirect, or proximate cause of the damages alleged. Thus, the Supreme Court correctlygranted the defendants' respective motions for summary judgment dismissing the complaintinsofar as asserted against them. Rivera, J.P., Ritter, Dillon and Carni, JJ., concur. [See12 Misc 3d 1193(A), 2006 NY Slip Op 51560(U).]