O'Connell v. Kavanagh

231 A.D.2d 29, 662 N.Y.S.2d 1, 1997 N.Y. App. Div. LEXIS 7832
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 24, 1997
StatusPublished
Cited by13 cases

This text of 231 A.D.2d 29 (O'Connell v. Kavanagh) 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
O'Connell v. Kavanagh, 231 A.D.2d 29, 662 N.Y.S.2d 1, 1997 N.Y. App. Div. LEXIS 7832 (N.Y. Ct. App. 1997).

Opinions

OPINION OF THE COURT

Rubin, J.

This appeal involves the construction of General Municipal Law § 205-a, commonly referred to as the Firefighter’s Law. Specifically at issue is the degree to which the injury sustained by the injured firefighter must be causally related to the statutory violation alleged to have existed. In our view, the court is required to accord the Firefighter’s Law a liberal construction to accomplish its salutary purpose.

Recovery under the statute does not require proximate causation or even a direct connection between the safety violation alleged and the resulting injury (McGee v Adams Paper & Twine Co., 26 AD2d 186, 195, affd 20 NY2d 921). The legislation is " 'intended to impose liability in any case where there is any practical or reasonable connection between a violation and the injury or death of a fire[fighter]’ ” (Mullen v Zoebe, [31]*31Inc., 86 NY2d 135, 142, quoting McGee v Adams Paper & Twine Co., supra, at 195). Apart from compensation for the injury sustained in the line of duty, the statute affords protection to firefighters by encouraging those in control of property to comply with building, fire and safety codes (General Municipal Law § 205-a; Mullen v Zoebe, Inc., supra, at 141).

The fire in this case is suspected to have originated in a pile of painting supplies stored just a short distance from defendant’s apartment door, under the stairway leading up to the second floor. Plaintiff was injured while attempting to gain entry to an apartment on an upper floor. At his examination before trial, plaintiff testified that, on arrival, he had observed the occupants hanging out of the apartment windows. He further stated that heavy smoke had spread throughout the building and filled the hallway in front of the apartment door. Plaintiff used a device to force open the steel door but only succeeded in creating an opening four or five inches wide. He sustained injury to his shoulder when he threw his body against the door a number of times to open it sufficiently to permit entry. Two women found in the apartment were assisted down a ladder to safety. During his deposition testimony, defendant identified the women as his daughters.

On his way out of the building, plaintiff observed that the painting supplies under the stairway included cans containing paint, lacquer and benzene as well as cartons, papers and drop cloths. Plaintiff alleges that storage of these combustible materials in a corridor is a violation of § 27-369 of the Administrative Code of the City of New York. The record suggests that the collection of painting supplies was the main source of the fire as it was necessary to extinguish the blaze in this area to enable firefighters to enter the building. While defendant speculates that the fire was the result of arson, there is no evidence in the record to support his theory.

Defendant begins with the assertion that dismissal of plaintiff’s action must be sustained because "Mr. O’Connell has never provided any proof of any statutory violation concerning these stored painting materials.” He then cites various cases for the proposition that a cause of action under the Firefighter’s Law cannot be sustained if the connection between the violation and the injury is too remote. He concludes with the contention that plaintiff’s injury resulted from his decision to use his body instead of a tool as the means to force open the apartment door.

The lack of merit to defendant’s first point is evident from a casual reading of some of the cases he cites, which refer [32]*32merely to "alleged” violations as the predicate for imposing responsibility under the statute (e.g., Heyer v City of New York, 176 AD2d 550). For example, in Schwarzrock v Thurcon Dev. Co. (193 AD2d 357, 358, lv dismissed 82 NY2d 846), this Court stated that "there was no reasonable connection between the violations alleged and plaintiffs injuries” (emphasis supplied). As the Court of Appeals stated in Zanghi v Niagara Frontier Transp. Commn. (85 NY2d 423, 441), to defeat a motion for summary judgment seeking dismissal of the complaint "a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter (Brophy v Generoso, 137 AD2d 478, 479).” It is clear that whether the alleged omission or negligence of a party in control of the premises constitutes a failure to comply with a statutory provision is a question of fact to be determined at trial.

Nor is there any merit to defendant’s suggestion that plaintiff is responsible for his injuries because he used his body rather than a tool to effect entry into the apartment. It is settled that neither assumption of risk nor contributory negligence may be asserted in defense to an action brought under the Firefighter’s Law (Mullen v Zoebe, Inc., supra, at 143; Johnson v Riggio Realty Corp., 153 AD2d 485, 487, lv dismissed 74 NY2d 945).

Defendant’s remaining contention is that there is "no reasonable connection between plaintiff’s alleged injuries and defendant’s alleged statutory violation.” While he assails the quantum of plaintiff’s proof, defendant fails to state exactly why plaintiffs injury is only remotely connected to defendant’s asserted failure to comply with the Administrative Code of the City of New York. The section alleged to have been violated states, in material part, "§ 27-369 Corridors. Corridors shall be kept readily accessible and unobstructed at all times. Corridors shall be kept free of combustible contents”. It is apparent that the storage of flammable items, especially such highly flammable liquids as lacquer and benzene, in a hallway under the stairs, is a violation of this provision. It is also readily infer-able that the proscription against storing combustibles is intended to facilitate access to and egress from the premises. The preceding section begins: "§ 27-368 General, (a) Means of egress shall be provided for all buildings by one or more of the [33]*33facilities listed below * * * Fire escapes shall not be permitted on new construction, with the exception of group homes.” Defendant testified that his building does not have a fire escape.

It would appear that, contrary to defendant’s contention, the alleged statutory violation had a great deal to do with the emergency confronting the responding firefighters. The heavy smoke condition in the hallway, caused by the burning paint and other combustibles, prevented the occupants of the upstairs apartment from escaping by way of the corridor to the street. Heavy smoke rose from the location under the stairs where the painting supplies were stored, finding its way into the upstairs apartment and forcing the occupants to lean out the windows. Observing this upon his arrival at the scene, plaintiff found it necessary to rescue the trapped occupants, requiring him to break through the steel door to gain access to their apartment.

This Court had occasion to construe the application of the Firefighter’s Law to an injury indirectly resulting from a statutory violation in the case of Lusenskas v Axelrod (183 AD2d 244, appeal dismissed 81 NY2d 300). Defendant’s attempt to distinguish the instant matter from Lusenskas is notable for its imprecise statement of the facts.

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Bluebook (online)
231 A.D.2d 29, 662 N.Y.S.2d 1, 1997 N.Y. App. Div. LEXIS 7832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnell-v-kavanagh-nyappdiv-1997.