Cotter v. Pal & Lee Inc.

86 A.D.3d 463, 928 N.Y.2d 262
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 21, 2011
StatusPublished
Cited by3 cases

This text of 86 A.D.3d 463 (Cotter v. Pal & Lee Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotter v. Pal & Lee Inc., 86 A.D.3d 463, 928 N.Y.2d 262 (N.Y. Ct. App. 2011).

Opinion

Plaintiff Thomas Cotter, a New York City firefighter, injured his knee and thumb on September 15, 2005 while extinguishing a fire at defendant Mohammed Faiz’s (Faiz) Kennedy Fried Chicken restaurant. Defendant Pal & Lee Inc. (Pal) owns the five-story building where the restaurant is located.

Plaintiffs commenced this personal injury action against Pal and Faiz on May 4, 2006, alleging that defendants’ violation of various sections of the Administrative Code of the City of New York resulted in a hole in the floor, accumulated debris and other unsafe conditions.1 They claim that these violations directly or indirectly caused plaintiffs injuries and that he is therefore entitled to recover under General Municipal Law § 205-a.2

Faiz testified at deposition that he leased the premises in 1997, and that both he and the owners have made repairs since [464]*464then. He testified that when he entered into the lease, there was an “X” inside a square spray-painted on the exterior, but that he did not know what the symbol denoted. Faiz testified that shortly after taking possession he renovated the ground floor, adding new support beams, tile flooring, fire-suppression and exhaust systems, and equipped the premises with fire extinguishers. The floors above the restaurant remained vacant.

Faiz further testified that the restaurant had been cleaned three days before the fire in anticipation of an inspection by the City Health Department. He testified that the restaurant was inspected routinely by the Health Department, twice annually by the New York City Fire Department (FDNY), and intermittently by the Building Department, and that no violations had been issued by the Building Department. Faiz further testified that he did not observe any holes or cracks in the floor when he closed the restaurant at 1:00 a.m. on the night of the fire.

Plaintiff testified at deposition that at approximately 2:00 a.m., his station responded to a report of a fire at Faiz’s restaurant. When he arrived at the fire, he observed the spray-painted “X” on the exterior of the building, which he understood to mean that the building had experienced a prior fire, the roof was “open,” and that he should be on his “A” game. He testified that he and two other firefighters entered the building carrying a hose spraying “tons of water.”

Plaintiff testified that he could not see due to the heavy smoke and had to climb over “debris.” He further testified that his foot became lodged in something that “just wasn’t part of the floor.” Although he characterized the condition as a hole, he admitted that he did not see any holes and did not “know for a fact” what trapped his foot. Plaintiff said he was “sure” that some of the obstacles he encountered were restaurant “fixtures” strewn “all over the place” by the hose water, which had enough velocity to “move a couch” or “blow a hole in a tin roof.”

The two firefighters who accompanied plaintiff were deposed and testified that they too could not see due to the heavy smoke, but that there were tables, chairs, and booths knocked down. One of them also fell, but he was uncertain as to what caused him to fall. After approximately 10 minutes in the building, the men were called out due to the heavy fire condition, and efforts to extinguish the fire continued from outside the building.

Post-fire inspection reports were prepared by the FDNY Fire Chief who was on duty the night of the fire, a fire marshal, and the fire inspector hired by Faiz’s insurer. The inspectors did not report holes in the area of the restaurant where the firefighters were located. The reports did not agree on the point of origination or cause of the fire.

[465]*465The FDNY Fire Chief testified that the “X” on the building is one of several symbols used by the fire department to indicate the stability and occupancy of a building. He explained that an “X” indicates that the building is vacant and firefighting operations should be conducted from the exterior. He testified that an owner may make repairs to the premises after the building is marked and that the FDNY does not inspect “marked” buildings to see if repairs have been made. The FDNY Fire Chief testified that although there was an “X” on defendants’ building at the time of the fire, such marking was an error since the first floor was occupied.

Following discovery, Pal and Faiz moved for summary judgment dismissing the complaint on grounds that they did not violate any code section or statute with a reasonable connection to Cotter’s claimed injuries, and that plaintiffs’ section 205-a claim is speculative. In opposition, plaintiffs offered, inter alia, the report of their expert who opined that defendants failed to comply with Administrative Code, Building Code and Housing Maintenance Code provisions, as alleged by the pleadings, and that the violations constituted a “direct cause” of Cotter’s injuries. However, the expert relied only on the documents presented to the court and did not personally inspect the premises.

The motion court granted defendants’ summary judgment motions, concluding that plaintiffs failed to “make a prima facie case of negligence under [General Municipal Law] § 205-a against either defendant.” The motion court found that plaintiffs’ allegation of holes in the floor and accumulated debris was speculative, and there was no evidence that exacerbation of the intensity or spread of the fire caused plaintiffs injuries.

Plaintiffs appeal on the grounds that the motion court erroneously applied the common-law standard of causation rather than the statutory standard, and that there are material questions of fact as to whether defendants violated provisions of the Administrative Code. For the reasons set forth below, we affirm the motion court’s summary judgment dismissal.

General Municipal Law § 205-a provides protection to a firefighter injured as a result of a building code violation that “enlarges the hazard of his task by diminishing fire safety or prevention” (Meyer, 258 AD2d at 316). To make out a valid claim, a plaintiff firefighter must identify the statute or ordinance that defendant violated, describe the manner in which he was injured, and set forth relevant facts from which it may be inferred that the defendant’s negligence directly or indirectly caused him harm (Zvinys v Richfield Inv. Co., 25 AD3d 358, 359 [2006], Iv denied 7 NY3d 706 [2006], quoting Zanghi v Niagara [466]*466Frontier Transp. Commn., 85 NY2d 423, 441 [1995]). While a plaintiff need only establish a practical or reasonable connection between the statutory or regulatory violation and the claimed injury (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]), the causation element will not be found where the connection is too speculative to support General Municipal Law § 205-a liability (see e.g. Downey v Beatrice Epstein Family Partnership, L.P., 48 AD3d 616 [2008], Iv denied 11 NY3d 702 [2008]; Zvinys, 25 AD3d at 359; Kenavan v City of New York, 267 AD2d 353, 356 [1999], Iv denied 95 NY2d 756 [2000]).

In this case, defendants met their initial burden by presenting deposition testimony, post-fire inspection reports, and other evidence indicating that there were no violations, specifically holes in the floor and accumulated debris, that directly caused plaintiffs injuries, or that indirectly caused plaintiffs injuries by increasing the inherent dangers of firefighting (see e.g. Downey, 48 AD3d at 619;

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Bluebook (online)
86 A.D.3d 463, 928 N.Y.2d 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotter-v-pal-lee-inc-nyappdiv-2011.