McLoughlin v. Jimmy Ray's Restaurant

193 A.D.2d 467, 597 N.Y.S.2d 365, 1993 N.Y. App. Div. LEXIS 4813

Opinion

Order, Supreme Court, New York County (William J. Davis, J.), entered on or about March 18, 1992, which granted defendants-respondents’ motion for summary judgment dismissing the complaint, with leave to plaintiffs to serve an amended complaint specifying the statute or ordinance violated by defendants-respondents, unanimously affirmed, without costs, and without prejudice to defendants-respondents’ right to move for summary judgment anew.

The IAS Court correctly determined that plaintiff firefighters failed to submit any evidence to support their cause of action for negligence against defendants-respondents independent of the fire that brought plaintiffs to the premises (see, Maisch v City of New York, 181 AD2d 467). It was not an abuse of discretion for the IAS Court to grant plaintiffs leave to replead in order to specify the statute or ordinance violated and thereby show a viable cause of action under General Municipal Law § 205-a (see, Maisch v City of New York, supra). Concur—Carro, J. P., Milonas, Ellerin and Kassal, JJ.