Nelson v. Donahue

Appellate Division of the Supreme Court of New York

Nelson v. Donahue

248 A.D.2d 329, 670 N.Y.S.2d 475, 1998 N.Y. App. Div. LEXIS 3381

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 1998

StatusPublished

Cited by2 cases

This text of 248 A.D.2d 329 (Nelson v. Donahue) 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

Nelson v. Donahue, 248 A.D.2d 329, 670 N.Y.S.2d 475, 1998 N.Y. App. Div. LEXIS 3381 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered on or about October 10, 1997, which, upon reargument, vacated the prior order of the same court and Justice, entered on or about December 20, 1996, inter alia, granting defendants’ motion for summary judgment dismissing plaintiffs General Municipal Law § 205-a claim, reinstated the previously dismissed General Municipal Law § 205-a cause of action and adhered to the court’s prior denial of defendants’ motion for summary judgment dismissing plaintiffs negligence cause of action, unanimously affirmed, without costs.

Plaintiff firefighter alleged that while fighting a fire inside the subject premises, he was hit on the back by an air conditioning duct that fell from the ceiling, causing him to fall and land, twisting his knee on stock and debris that were lying in the aisle space of the store, in violation of certain municipal statutes, rules and ordinances.

Supreme Court properly reinstated plaintiffs General Municipal Law § 205-a claim since the conflicting allegations of the parties raised issues of fact with respect to whether defendants created or had notice of a condition constituting a violation of a statute, rule or ordinance and as to whether such a violation directly or indirectly caused plaintiffs harm (O’Connell v Kavanagh, 231 AD2d 29; Cosgriff v City of New York, 241 AD2d 382; cf, McCullagh v McJunkin, 240 AD2d 713).

As defendants commendably concede in their reply brief, [330]*330plaintiffs negligence action was properly instituted, pursuant to General Obligations Law § 11-106, which significantly restricts the scope of the firefighter’s rule (see, L 1996, ch 703; Castro v Trost, 237 AD2d 983). Contrary to their contention, however, Supreme Court also properly denied their motion for summary judgment dismissing this cause of action since issues of fact exist warranting a trial of the matter.

Concur — Sullivan, J. P., Rosenberger, Nardelli, Rubin and Saxe, JJ.

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—Order, Supreme Court, New York County (Stuart Cohen, J.), entered on or about October 10, 1997, which, upon reargument, vacated the prior order of the same court and Justice, entered on or about December 20, 1996, inter alia, granting defendants’ motion for summary judgment dismissing plaintiffs General Municipal Law § 205-a claim, reinstated the previously dismissed General Municipal Law § 205-a cause of action and adhered to the court’s prior denial of defendants’ motion for summary judgment dismissing plaintiffs negligence cause of action, unanimously affirmed, without costs.

Plaintiff firefighter alleged that while fighting a fire inside the subject premises, he was hit on the back by an air conditioning duct that fell from the ceiling, causing him to fall and land, twisting his knee on stock and debris that were lying in the aisle space of the store, in violation of certain municipal statutes, rules and ordinances.

Supreme Court properly reinstated plaintiffs General Municipal Law § 205-a claim since the conflicting allegations of the parties raised issues of fact with respect to whether defendants created or had notice of a condition constituting a violation of a statute, rule or ordinance and as to whether such a violation directly or indirectly caused plaintiffs harm (O’Connell v Kavanagh, 231 AD2d 29; Cosgriff v City of New York, 241 AD2d 382; cf, McCullagh v McJunkin, 240 AD2d 713).

As defendants commendably concede in their reply brief, [330]*330plaintiffs negligence action was properly instituted, pursuant to General Obligations Law § 11-106, which significantly restricts the scope of the firefighter’s rule (see, L 1996, ch 703; Castro v Trost, 237 AD2d 983). Contrary to their contention, however, Supreme Court also properly denied their motion for summary judgment dismissing this cause of action since issues of fact exist warranting a trial of the matter.

Concur — Sullivan, J. P., Rosenberger, Nardelli, Rubin and Saxe, JJ.

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Bluebook (online)

248 A.D.2d 329, 670 N.Y.S.2d 475, 1998 N.Y. App. Div. LEXIS 3381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-donahue-nyappdiv-1998.

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