| Mulham v City of New York |
| 2013 NY Slip Op 06666 [110 AD3d 856] |
| October 16, 2013 |
| Appellate Division, Second Department |
| Donald Mulham, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmersand Janet L. Zaleon of counsel), for respondent.
In an action, inter alia, to recover damages pursuant to General Municipal Law§ 205-e, the plaintiff appeals, as limited by his brief, from so much of an order ofthe Supreme Court, Richmond County (Aliotta, J.), entered June 11, 2012, as granted thatbranch of the defendant's motion which was for summary judgment dismissing the causeof action pursuant to General Municipal Law § 205-e insofar as predicated on aviolation of New York City Health Code (24 RCNY) § 153.19.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendant's motion which was for summary judgment dismissingthe cause of action pursuant to General Municipal Law § 205-e insofar aspredicated on a violation of New York City Health Code (24 RCNY) § 153.19 isdenied.
The plaintiff, a sergeant in the New York City Police Department, pursued a suspecton foot into a wooded, vacant lot owned by the City of New York. The lot was strewnwith debris such as radios, stereos, and hundreds of red-colored crates. There was also astructure with a base measuring five feet by five feet fashioned out of, among otherthings, wood, sticks, fabrics, and crates. Thinking that the suspect was hiding inside thestructure, the plaintiff "kind of jumped" on a flat-lying piece of plywood that formed thefoundation of the structure. His right foot went through that piece of plywood, and hesustained injuries to his right knee and right shoulder. The plaintiff was later separatedfrom his employment, having been placed on disability leave.
The plaintiff commenced this action alleging, inter alia, a cause of action pursuant toGeneral Municipal Law § 205-e, which he predicated on a violation of New YorkCity Health Code (24 RCNY) § 153.19. The City moved for summary judgmentdismissing that cause of action on the ground, inter alia, that New York City Health Code§ 153.19 could not form a predicate for such a cause of action. The Supreme Courtgranted that branch of the motion, holding that section 153.19 was a "sanitationprovision," and that a General Municipal Law § 205-e cause of action had to bepredicated on some form of "safety consideration."[*2]
To support a cause of action under GeneralMunicipal Law § 205-e, a plaintiff law enforcement officer, inter alia, mustidentify the statute or ordinance with which the defendant failed to comply (see Williams v City of NewYork, 2 NY3d 352, 363-364 [2004]; Byrne v Nicosia, 104 AD3d 717, 719 [2013]). Liabilitypursuant General Municipal Law § 205-e will exist where there is negligentnoncompliance with "any of the statutes, ordinances, rules, orders and requirements ofthe federal, state, county, village, town or city governments or of any and all theirdepartments, divisions and bureaus" (General Municipal Law § 205-e [1]),provided that the statute, ordinance, rule, order or requirement cited is found in a"well-developed bod[y] of law and regulation" that "impose[s] clear duties"(Desmond v City of New York, 88 NY2d 455, 464 [1996] [internal quotationmarks and emphasis omitted]). Section 205-e must be applied " 'expansively' so as tofavor recovery by police officers whenever possible" (Williams v City of NewYork, 2 NY3d at 364; see Gonzalez v Iocovello, 93 NY2d 539, 548 [1999]).
New York City Health Code § 153.19 (a) provides that "[t]he owner, agent,lessee, tenant, occupant or other person who manages or controls a building or lot shallbe jointly and severally responsible for keeping . . . the premises free fromobstructions and nuisances and for keeping . . . the . . . lotclean and free from garbage, refuse, rubbish, litter, other offensive matter oraccumulation of water." Contrary to the Supreme Court's conclusion, this provisionconstitutes a well-developed body of law (see Donna Prince L. v Waters, 48 AD3d 1137, 1138-1139[2008]; cf. Galapo v City of New York, 95 NY2d 568, 575 [2000]; Desmondv City of New York, 88 NY2d at 464; Vosilla v City of New York, 77 AD3d 649 [2010];Shelton v City of New York, 256 AD2d 611 [1998]). Further, it imposes clearduties (see Cosgriff v City of New York, 93 NY2d 539, 552 [1999]). Indeed, thefailure to comply with section 153.19 can result in criminal sanctions, includingincarceration for up to one year (see NY City Charter § 558 [e]; Peoplev Eisen, 77 Misc 2d 1044 [1974]). Where criminal liability may be imposed, wewould be "hard put to find a more well-developed body of law and regulation thatimposes clear duties" (Williams v City of New York, 2 NY3d at 365).
Although, as the Supreme Court concluded, prohibitions against littering may beprimarily directed toward aesthetic and health considerations, they also serve the purposeof keeping sidewalks and lots free of refuse that may present a tripping hazard. In anyevent, General Municipal Law § 205-e includes no exceptions; indeed, itslanguage is broad, referring to any of the statutes, ordinances, rules, orders andrequirements of virtually any governmental division, which are limited only to the extentthat those provisions are well-developed and impose clear duties. The Legislature hasfrowned upon judicially crafted exceptions and defenses to General Municipal Law§ 205-e, expressing its clear intent through subsequent amendments designed "toeradicate apparent confusion in the courts regarding the scope of [the statute] to ensure[that it is] applied in accordance with the original legislative intent to provide anumbrella of protection for police officers . . . who, in the course of theirmany and varied duties, are injured . . . by any tortfeasor who violates anyrelevant statute, ordinance, code, rule, regulation or requirement" (Senate Mem inSupport, 1996 McKinney's Session Laws of NY at 2634). Thus, it was error for theSupreme Court, relying on Shepherd v Werwaiss (947 F Supp 71 [ED NY1996]) for support, to conclude that New York City Health Code § 153.19 couldnot form the basis for a General Municipal Law § 205-e claim because it is a"sanitation provision." Consequently, the defendant failed to satisfy its prima facieburden establishing its entitlement to judgment as a matter of law dismissing the GeneralMunicipal Law § 205-e cause of action on the basis that section 153.19 could notsufficiently support it.
The defendant also failed to satisfy its prima facie burden on the issue of notice.Recovery under General Municipal Law § 205-e "does not require proof of suchnotice as would be necessary to a claim in common-law negligence" (Terranova v New York City Tr.Auth., 49 AD3d 10, 17 [2007] [applying this rule to a claim by a firefighterpursuant to the similarly worded General Municipal Law § 205-a]; see Alexander v City of NewYork, 82 AD3d 1022, 1024 [2011]). Rather, the plaintiff must only establishthat the circumstances surrounding the violation indicate that it was a result of neglect,omission, or willful or culpable negligence on the defendant's part (see Alexander vCity of New York, 82 AD3d at 1024; Terranova v New York City Tr. Auth.,49 AD3d at 17-18). As the owner of the subject lot, the City failed to demonstrate thatthe plaintiff's injury was not the result of its alleged neglect of its property.[*3]
The City's remaining contention is unpreservedfor appellate review.
Accordingly, the Supreme Court should have denied that branch of the City's motionwhich was for summary judgment dismissing the cause of action pursuant to GeneralMunicipal Law § 205-e insofar as predicated on a violation of New York CityHealth Code § 153.19. Mastro, J.P., Dillon, Angiolillo and Chambers, JJ., concur.[Prior Case History: 35 Misc 3d 1238(A), 2012 NY Slip Op 51036(U).]