| Paolicelli v Fieldbridge Assoc., LLC |
| 2014 NY Slip Op 05849 [120 AD3d 643] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Christopher Paolicelli,Respondent, v Fieldbridge Associates, LLC,Appellant. |
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Reed M. Podell andOlivia Gross of counsel) and Newman Myers Kreines Gross Harris, P.C., New York,N.Y. (Olivia M. Gross of counsel), for appellant (one brief filed).
Levine & Gilbert, New York, N.Y. (Harvey A. Levine and Richard Gilbert ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Partnow, J.), dated September 5, 2012,which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and itsapplication pursuant to CPLR 3211 (c) to convert the motion into one for summaryjudgment dismissing the complaint.
Ordered that on the Court's own motion, the appeal from so much of the order asdenied the defendant's application pursuant to CPLR 3211 (c) to convert its motion froma motion pursuant to CPLR 3211 (a) (7) to a motion for summary judgment dismissingthe complaint is deemed to be an application for leave to appeal from that portion of theorder, and leave to appeal is granted (see CPLR 5701); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the defendant's motion which were pursuant to CPLR 3211 (a)(7) to dismiss the cause of action to recover damages for common-law negligence and thecause of action pursuant to General Municipal Law § 205-a to the extentpredicated on a violation of Multiple Residence Law § 173, and substitutingtherefor provisions granting those branches of the motion; as so modified, the order isaffirmed, without costs or disbursements.
The plaintiff, a lieutenant in the New York City Fire Department, was injured onJanuary 3, 2008, while fighting a fire in a high-rise apartment building in Brooklyn thatis part of the Ebbets Field apartment complex, and is owned by the defendant,Fieldbridge Associates, LLC. The fire started in an apartment on the 14th floor of thebuilding, after a child allegedly lit paper material on the kitchen stove. The child's motherhad earlier lit two burners on the stove to heat the apartment.
The plaintiff commenced this action to recover damages for his injuries. In additionto a cause of action to recover damages for common-law negligence, he asserted a causeof action to recover damages pursuant to General Municipal Law § 205-a,predicated on violations of Multiple [*2]Dwelling Law§ 79, Multiple Residence Law § 173, and Administrative Codeof the City of New York § 27-2029, all of which require, as relevant here,that, between October 1 and May 31, a landlord provide heat sufficient to maintain atemperature of 68 degrees Fahrenheit between the hours of 6 a.m. and 10 p.m. Thedefendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint on the ground,inter alia, that the statutes and Administrative Code provision cited were not properpredicates for the General Municipal Law § 205-a cause of action.
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), "thecourt must accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory" (Sokol v Leader, 74 AD3d 1180, 1181 [2010] [internalquotation marks omitted]; seeNonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon vMartinez, 84 NY2d 83, 87-88 [1994]).
General Municipal Law § 205-a affords firefighters and their survivorsa statutory cause of action for line-of-duty injuries resulting from negligentnoncompliance with the requirements of any governmental statutes, ordinances, rules,orders, and requirements (see Giuffrida v Citibank Corp., 100 NY2d 72, 77[2003]; Galapo v City of New York, 95 NY2d 568, 573 [2000]). "To establish adefendant's liability under General Municipal Law § 205-a, a plaintifffirefighter must 'identify the statute or ordinance with which the defendant failed tocomply, describe the manner in which the firefighter was injured, and set forth thosefacts from which it may be inferred that the defendant's negligence directly or indirectlycaused the harm to the firefighter' " (Clarke v Drayton, 83 AD3d 762, 762 [2011], quotingZanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441 [1995]). Thestatute or ordinance identified must be part of a "well-developed body of law andregulation" that imposes "clear legal duties" or mandates the "performance ornonperformance of specific acts" (Vosilla v City of New York, 77 AD3d 649, 650 [2010][internal quotation marks omitted]; see Galapo v City of New York, 95 NY2d at574; Mulham v City of NewYork, 110 AD3d 856, 857 [2013]; Fahey v A.O. Smith Corp., 77 AD3d 612, 617 [2010]).
As the plaintiff correctly concedes, Multiple Residence Law § 173 isinapplicable, since he was injured in New York City, and the statute applies only in citieswith populations less than 325,000 (see Multiple Residence Law § 3[1]). Accordingly, the Supreme Court erred in denying that branch of the motion whichwas to dismiss the cause of action pursuant to General Municipal Law§ 205-a to the extent it is predicated on a violation of Multiple ResidenceLaw § 173. However, the plaintiff made the requisite showing that MultipleDwelling Law § 79 and Administrative Code of City of NY§ 27-2029 are part of well-developed bodies of law and regulation thatimpose clear legal duties, or mandate the performance or nonperformance of specific acts(cf. Vosilla v City of New York, 77 AD3d at 650). Both provisions mandate theperformance of specific acts. Moreover, failure to comply with the provisions can resultin criminal sanctions (see Multiple Dwelling Law § 304;Administrative Code of City of NY § 27-2118 [a]). "Where criminalliability may be imposed, we would be hard put to find a more well-developed body oflaw and regulation that imposes clear duties" (Mulham v City of New York, 110AD3d at 858 [internal quotation marks omitted]). Thus, Multiple Dwelling Law§ 79 and Administrative Code § 27-2029 can properly serve aspredicates for liability under General Municipal Law § 205-a.
The defendant's contention that Administrative Code § 27-2029 cannotserve as a predicate for liability pursuant to General Municipal Law § 205-abecause it is preempted by Multiple Dwelling Law § 79 is raised for thefirst time on appeal, but that contention may be reached since it involves a pure questionof law that appears on the face of the record which could not have been avoided ifbrought to the court's attention at the appropriate juncture (see Pipinias v J. Sackaris &Sons, Inc., 116 AD3d 749, 751 [2014]). The contention is, however, withoutmerit. Field preemption occurs when, as relevant here, "the Legislature's enactment of acomprehensive and detailed regulatory scheme in an area in controversy is deemed todemonstrate an intent to preempt local laws" (Matter of Chwick v Mulvey, 81 AD3d 161, 169-170[2010]; see Sunrise CheckCashing & Payroll Servs., Inc. v Town of Hempstead, 91 AD3d 126, 135[2011], affd 20 NY3d 481 [2013]). Contrary to the defendant's contention,Multiple Dwelling Law § 79 does not reflect the Legislature's intent topreempt local laws in the same area of regulation.
[*3] Furthermore, the plaintiff's allegations, as amplified bythe evidentiary material he submitted in opposition to the defendant's motion, weresufficient to make out a claim that the defendant violated the predicate statutes and thatthe statutory violations directly or indirectly caused his injuries. For purposes of aGeneral Municipal Law § 205-a cause of action, the plaintiff " 'isnot required to show the same degree of proximate cause as is required in a common-lawnegligence action' " (Clarke v Drayton, 83 AD3d at 762, quotingGiuffrida v Citibank Corp., 100 NY2d at 81). The plaintiff need only establish a"practical or reasonable connection between the statutory or regulatory violation and theclaimed injury" (id. at 81 [internal quotation marks omitted]; see Clarke vDrayton, 83 AD3d at 762; Alcalde v Riley, 73 AD3d 1101, 1103 [2010]). An "indirectcause" is "simply a factor that—though not a primary cause—plays a part inproducing the result" (Giuffrida v Citibank Corp., 100 NY2d at 80 [internalquotation marks omitted]). The plaintiff set forth facts sufficient to support a cause ofaction based on the defendant's alleged failure to provide sufficient heat, and set forthfacts sufficient to allege that this failure was a factor that played a part in the tenant'sdecision to utilize the stove top burners to heat the apartment. Contrary to the defendant'scontention, the act of the tenant's child in lighting paper material on a burner while thetenant was occupied elsewhere in the apartment, resulting in the fire which led to theplaintiff's injuries, was not, under the circumstances presented here, an intervening actthat defeats, at the pleading stage, the causes of action alleging liability (seeDerdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
Accordingly, the Supreme Court properly denied those branches of the defendant'smotion which were to dismiss the cause of action pursuant to General Municipal Law§ 205-a to the extent that is was predicated on violations of MultipleDwelling Law § 79 and Administrative Code § 27-2029.
The Supreme Court erred, however, in denying that branch of the motion which wasto dismiss the cause of action to recover damages for common-law negligence, as theplaintiff did not oppose that branch of the motion (see Matter of Agoglia v Benepe, 84 AD3d 1072, 1075[2011]).
The Supreme Court did not improvidently exercise its discretion in denying thedefendant's application pursuant to CPLR 3211 (c) to convert the motion to one forsummary judgment (see Sokol v Leader, 74 AD3d at 1183; cf. Pistolese v William FloydUnion Free Dist., 69 AD3d 825, 826 [2010]). Rivera, J.P., Balkin, Dickersonand Cohen, JJ., concur.