Campbell v Goga

[*1] Campbell v Goga 2009 NY Slip Op 52656(U) [26 Misc 3d 1204(A)] Decided on December 22, 2009 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2009
Supreme Court, Richmond County

Lori A. Campbell, As Administratix of the Estate of Michael Gorumba, deceased, Plaintiff,

against

Muho Goga, SAJET TAHIROVIC, L & S COLLISION AUTO BODY, INC. and THE CITY OF NEW YORK, Defendants.



12576/03

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion (No. 688) by defendant The City of New York (hereinafter, the "City") for an order pursuant to CPLR 3211 dismissing the complaint and all cross claims against it or, in the alternative, for summary judgment, is granted, and said causes of action are hereby severed and dismissed as against the City; the cross motion (No. 952) for like relief by non- municipal co-defendants Muho Goga, Sajet Tahirovic and L & S Collision Auto Body Inc. (hereinafter "co-defendants") is denied.

This matter arises out of the August 28, 2001 death of plaintiff's decedent, Michael Gorumba, a 28 year-old probationary firefighter, who died at the scene of a fire at 41 Rector Street, Staten Island, New York. The premises in question were owned and operated by co-defendants as an automotive repair shop. It is alleged that the building was initially used as a storage facility, and that the co-defendants turned the premises into an auto repair and body shop without making any of the required statutory improvements (i.e., the premises had no ventilation system, no sprinkler system, no air handlers, and no fire retardant beams) (see September 4, 2009 Affidavit of Denise Bekaert, an architect, Plaintiff's Exhibit B). An investigation by the New York City Fire Department (hereinafter FDNY) revealed that the likely cause of the fire was a drop-light that had been left on for an extended period of time in the vicinity of an open gasoline tank underneath a Mercedes- Benz. It is believed that the heat from the drop-light ignited the fumes from the gasoline, causing the fire to spread to the underside of the vehicle and eventually throughout the building (see August 28, 2001 Fire and Incident Report, Co-defendants' Exhibit I). [*2]

It appears undisputed that on the date of the fire[FN1], plaintiff's decedent was wearing his normal sixty pounds of personal protective equipment when he responded to the scene (see May 31, 2006 deposition of firefighter Steven Scarfone, p 44; City's Exhibit G). At the time of his death, the decedent was purportedly attempting to assist his fellow firefighters in removing a three-and-a-half line fire hose (see September 8, 2006 deposition of Captain Peter Tronolone, pp 95-96; City's Exhibit G), when he was observed by a civilian witness to be in respiratory distress. After a few minutes, a "may-day" was called, and plaintiff's decedent was found slumped over and unconscious inside the fire truck. He was rushed to the hospital in cardiac arrest, and was pronounced dead on arrival at the hospital.

It is undisputed that following an autopsy, the death certification generated by the Office of the City's Chief Medical Examiner listed the cause of the firefighter's death as "hypertrophic cardiomyopathy with myocardial arteriolarsclerosis" (see Co-defendants' Exhibit H), which has been colloquially described as the "silent killer" inasmuch as "sudden death is frequently the first symptom of the condition" (see March 18, 2009 Affidavit of Dr. Joseph I. Cohen, attached to Co-defendants' cross motion).

The City, for whom a Stipulation of Discontinuance was subsequently executed (see City's Exhibit E), now moves to dismiss its co-defendants' cross claims on the grounds, inter alia, that (1) neither plaintiff nor the cross claimants ever identified a nexus between the death and the violation of any well established statute, ordinance, or regulation upon which a cause of action under General Municipal §205-a may be predicated; (2) there is no evidence of any practical or reasonable connection between the firefighter's death and an unidentified rule purportedly requiring that probationary firefighters are never to be left alone at the scene of a fire; and (3) plaintiff's common-law claims are barred by the so-called Firefighter's rule. Essentially, the City argues that since it cannot be held liable to plaintiff, it likewise cannot be held liable to any of its co-defendants for, e.g., contribution (see CPLR 1401).

In their cross motion seeking dismissal of the complaint and cross claims, the co-defendants rely principally on the conclusion of their medical expert, Dr. Joseph I. Cohen, that decedent's death was not fire-related, but caused exclusively by his latent cardiac condition.[FN2]

As previously indicated, the cause of action against the City has been discontinued, [*3]leaving only the co-defendants' cross claims as the subject of its motion to dismiss. The motion is granted.

In opposing the City's motion to dismiss their cross claims, the co-defendants have failed to present any evidence of the City's violation of any statute, rule or ordinance sufficient to impose liability under General Municipal Law §205-a. Likewise, nowhere in the Complaint, Verified Bill of Particulars, or Second Supplemental Bill of Particulars has plaintiff pleaded the violation of any specific rules or laws that may be causally related to the firefighter's death. Hence, no predicate for the assertion of a General Municipal Law §205-a claim has been asserted. In this regard, plaintiff's August 22, 2003 Notice of Claim against the City (see City's Exhibit A) specifies no FDNY "rules [or] regulations" in support of the claim that probationary firefighters should not be left alone at the scene of the fire, or that decedent was negligently "allowed to be missing for several minutes before a may-day call was given" (id.). Moreover, even assuming that plaintiff's deceased could have survived if his distress had been noticed sooner, any causal relationship between the delay and his death must be considered highly speculative in the absence of support in the report of plaintiff's expert that his death was not spontaneous. Lacking this, the City's co-defendants have failed to show any reasonable, causal connection between decedent's death and the violation or delay in heeding the as-yet unidentified regulation.

In Garret v. Holiday Inns (58 NY2d 253), the Court of Appeals explained that "[i]f an independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm, he [or she] should be held responsible for the portion of the damage attributable to his or her negligence, despite the fact that the duty violated was not one owing directly to the injured person" (id. at 261). In other words, "a party seeking contribution must show that the co-defendant from whom contribution is sought owes a duty either to him or to the injured party and that a breach of this duty has contributed to the alleged injuries" (see Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 125 AD2d 754, 756 aff'd 71 NY2d 599). Here, under the Firefighter's Rule, the City owed no common-law duty of reasonable care to the firefighter (see Shelton v. City of New York, 256 AD2d 611) and none to its co-defendants, inasmuch as the premises were not owned by the City. In light of this lack of any independent duty, the City's co-defendants are not entitled to seek contribution from the City.

Lastly, the Court notes that the co-defendants have cited only a single paragraph in one case (Fisher v. City of New York, 48 AD3d 303) as supportive of their contention that their cross claims against the City should not be dismissed. In Fisher, however, a predicate violation had been demonstrated in support of plaintiff's §205-a cause of action, i.e., the City's alleged violation of enumerated OSHA regulations pertaining to the use of defective equipment. In this case, however, no comparable circumstance exists in support of a General Municipal Law §205-a claim, nor has any such predicate been identified by either plaintiff or the co-defendants.

The co-defendants' cross motion for summary judgment is denied. [*4]

On a motion, as here, for summary judgment, the function of the court is issue-finding, not issue-determination (Weiner v. Ga-Ro Die Cutting, 104 AD2d 331; affd 65 NY2d 732), and in making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (Glennon v. Mayo, 148 AD2d 580). Summary judgment must be denied if there is proof of "facts sufficient to require a trial of any issue" (CPLR 3212[b]). Thus, summary judgment is only appropriate where it has been clearly demonstrated that there are no genuine issues of fact. In addition, it has been held that "summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of [such] an issue is arguable" (American Home Assur. Co. v. Amerford Intl. Corp., 200 AD2d 472, 473). Nevertheless, it is only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations which will suffice to defeat the motion (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231).

Attached to plaintiff's papers in opposition to the cross motion is the affirmation of a cardiologist, Dr. Bruce D. Charash, who opines in response to the affidavit given by defendants' medical expert that, inter alia, considering the 88 degree temperature and the relatively high humidity which existed on August 28, 2001, it was the extreme physiological and psychological stress of the specific firefighting activities in which decedent was engaged that brought about the cardiac arrest, rather than the underlying pathology of an enlarged heart. This conflict among medical experts Drs. Cohen and Charash dramatically illustrates the presence of a triable issue of fact. "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Corbett v. County of Onondaga, 291 AD2d 886, 887, quoting Williams v. Luciantelli, 259 AD2d 1003, 1003 [internal quotation marks omitted]). "It is a well-established principle of tort law that the defendant must take the plaintiff as he finds him"... [Thus] a defendant will be held liable for all of the consequences of [e.g.] striking a plaintiff on the head, even though he was unaware when he did so that the plaintiff had an egg-shell cranium" (Ace v. State of New York, 207 AD2d 813, 815 [dissenting opinion of Friedmann, J.], affd 87 NY2d 993). As is relevant here, the fact that co-defendants' premises had no fire suppression system serves to "raise a factual question as to whether defendants' violations resulted in a malfunctioning fire control system that directly or indirectly caused plaintiff's injuries by failing to prevent the fire or by exacerbating it." (Giuffrida v. Citibank Corp., 100 NY2d 72 at 82; emphasis supplied).

Accordingly, it is

ORDERED, that so much of the motion of defendant, the City of New York to dismiss the cross claims asserted against it by its co-defendants is granted, and it is further

ORDERED, that said cross claims are severed and dismissed; and it is further

ORDERED, that the co-defendants' cross motion, inter alia, for summary judgment is denied in its entirety; and it is further [*5]

ORDERED, that the Clerk mark his records accordingly.[FN3]

ENTER,

Dated: December 22, 2009_____/s/_______________________________

Hon. Thomas P. Aliotta

J. S. C. Footnotes

Footnote 1:According to plaintiff's medical expert, Dr. Bruce D. Charash, the temperature on the day in question was 88 degrees and the humidity was39% (see Plaintiff's Affirmation in Opposition, Exhibit A).

Footnote 2:In October of 2000, an FDNY pre-placement medical evaluation identified decedent as having a heart murmur and mitral valve prolapse. Based on these findings, he was subjected to a stress test which showed, inter alia, excellent exercise tolerance and normal blood pressure. Accordingly, he was cleared for full duty by the medical staff.

Footnote 3:As was noted earlier, the complaint as against defendant, the City of New York was previously discontinued with prejudice.