| Norman v City of New York |
| 2009 NY Slip Op 01964 [60 AD3d 830] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Jodi A. Norman, Respondent, v City of New York et al.,Appellants-Respondents, and Health Metrics, Inc.,Respondent-Appellant. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Merril S.Biscone of counsel), for defendant-appellant, defendant-respondent Health Metrics, Inc. La Pietra & Krieger, P.C., White Plains, N.Y. (Louis C. La Pietra and Rosemary Carroll ofcounsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant City of New Yorkappeals, as limited by its brief, from so much of an order of the Supreme Court, RichmondCounty (Aliotta, J.), as denied those branches of its motion which were for summary judgmentdismissing the cause of action to recover damages for common-law negligence, so much of thecause of action alleging a violation of General Municipal Law § 205-e as was predicatedupon an alleged violation of Labor Law § 27-a (3), and related cross claims insofar asasserted against it, and the defendant Health Metrics, Inc., separately appeals, as limited by itsbrief, from so much of the same order as denied that branch of its separate motion which was forsummary judgment dismissing the cause of action to recover damages for common-lawnegligence insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the motion of the defendant City of New York which were for summaryjudgment dismissing the cause of action to recover damages for common-law negligence, [*2]so much of the cause of action alleging a violation of GeneralMunicipal Law § 205-e as was predicated upon an alleged violation of Labor Law §27-a (3), and related cross claims insofar as asserted against it, and that branch of the separatemotion of the defendant Health Metrics, Inc., which was for summary judgment dismissing thecause of action to recover damages for common-law negligence insofar as asserted against it aregranted.
The plaintiff, a New York City Police Captain, allegedly was injured while performing aphysical fitness examination administered jointly by the New York City Police Department andthe defendant Health Metrics, Inc. (hereinafter Health Metrics).
The Supreme Court erred in denying that branch of the motion of the defendant City of NewYork which was for summary judgment dismissing the cause of action to recover damages forcommon-law negligence insofar as asserted against it, as the City established its prima facieentitlement to judgment as a matter of law dismissing that claim. A police officer may notrecover damages for common-law negligence where "some act taken in furtherance of a specificpolice . . . function exposed the officer to a heightened risk of sustaining theparticular injury" (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 439[1995]). Here, the plaintiff's participation in the physical fitness examination, which wasdesigned in part to mimic the type of physical activity that officers would encounter while in thefield, exposed her to a heightened risk of injury (see Sexton v City of New York, 32 AD3d 535 [2006]; Brady vCity of New Rochelle, 296 AD2d 365 [2002]; Smith v County of Erie, 210 AD2d933 [1994]). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, theplaintiff's cause of action to recover damages from the City under a common-law negligencetheory was barred by the firefighter's rule (see Santangelo v State of New York, 71NY2d 393 [1988]).
The City established its prima facie entitlement to judgment as a matter of law dismissing somuch of the cause of action alleging a violation of General Municipal Law § 205-e as waspredicated upon a violation of Labor Law § 27-a (3). Although Labor Law § 27-amay serve as a proper predicate for a cause of action alleging a violation of General MunicipalLaw § 205-e (see Campbell vCity of New York, 31 AD3d 594 [2006]; Balsamo v City of New York, 287AD2d 22 [2001]), here, in opposition, the affidavit of the plaintiff's expert failed to raise a triableissue of fact as to whether duct tape used to mark the gymnasium floor during the fitnessexamination constituted a recognized hazard (see Diaz v New York Downtown Hosp.,99 NY2d 542 [2002]; Murphy v Conner, 84 NY2d 969 [1994]; Walker v Commack School Dist., 31AD3d 752 [2006]; Lindeman v Vecchione Constr. Corp., 275 AD2d 392 [2000]).Therefore, the Supreme Court erred in denying that branch of the City's motion.
The Supreme Court erred in denying that branch of Health Metrics' motion which was forsummary judgment dismissing the cause of action to recover damages for common-lawnegligence insofar as asserted against it. Health Metrics submitted an expert affidavit opiningthat the duct tape used on the floor of the gymnasium was not any more or less slippery than thegymnasium floor itself, and the plaintiff's expert failed to raise a triable issue of fact as to howthe use of duct tape deviated from proper safety standards (see Trimarco v Klein, 56NY2d 98 [1982]; German v CampbellInn, 37 AD3d 405 [2007]; Walker v Commack School Dist., 31 AD3d 752 [2006];Lindeman v Vecchione Constr. Corp., 275 AD2d 392 [2000]; Brandefine v NationalCleaning Contr., 265 AD2d 441 [1999]; Beyda v Helmsley Enters., 261 AD2d 563[1999]; Kruimer v National Cleaning Contrs., 256 AD2d 1 [1998]). Fisher, J.P., Dillon,Belen and Chambers, JJ., concur.