Menard v Highbridge House, Inc.
Annotate this CaseDecided on July 20, 2009
Supreme Court, Bronx County
Miguel Menard, Plaintiff,
against
Highbridge House, Inc., ARIES MANAGEMENT SERVICES, INC., a/k/a AFFORDABLE HOUSING, INC., Defendants,
18683/2005
Counsel for Plaintiff:
Sullivan, Papain, Block, McGrath & Cannavo, PC
by Vito Cannavo, Esq.
212-732-9000
Counsel for Defendant:
Kaufman, Borgeest & Ryan, LLP
by Douglas J. Domsky, Esq.
212-980-9600
Betty Owen Stinson, J.
Upon the foregoing papers, this motion by defendants for summary judgment dismissing plaintiff's complaint is granted.
On January 4, 2005 a fire occurred on a balcony in apartment 19E at 1131 Ogden Avenue, owned by Highbridge House, Inc. ("Highbridge") and managed by Aries Management Services, Inc. ("Aries"). Firefighters responded quickly and entered the premises. Plaintiff, firefighter Miguel Menard ("Menard"), was part of the three or four man team sent up to subdue the flames. Following protocol, the firefighters took the elevator up to the 17th floor, two floors below where the actual fire was. Menard and his fellow firefighters, completely suited with firefighter gear and equipment, began walking up the stairs toward the 19th floor. They intended to hook the hose up to a standpipe in the stairwell and then douse the flames in 19E. While walking up the stairs, three women came running down the stairwell in a panicked state. The [*2]first two women passed by all the firefighters safely, however the third unidentified woman did not. She had successfully passed the first two men ahead of Menard before she came into contact with him. The contact caused Menard to fall back and injure his shoulder. The firefighters, including Menard, then completed their job and completely extinguished the fire. Afterward, Menard went to the hospital and the cause of the fire was determined to be a cigarette catching and lighting clothes and debris cluttered on the balcony of 19E while tenant was occupied within the apartment.
Menard commenced this suit seeking damages under General Municipal Law ("GML") § 205-a alleging that the balcony of 19E was in a "Collyer's Mansion" condition and that it was this violation that had in fact caused plaintiff to be harmed. Menard also recited a laundry list of alleged violations by defendants, however, this court finds that those allegations have little to no merit. Defendants, Highbridge and Aries, both moved for summary judgment arguing that the alleged violations did not cause the accident on the stairs and that the unidentified woman was an intervening/superseding cause of Menard's injury.
In support of its motion Aries and Highbridge offered copies of the pleadings, the Fire Marshall's report, the depositions of the plaintiff, the superintendent and the property manager as well as the expert affidavit of former Fire Marshall Frank Valenti. In that affidavit, Mr. Valenti avers that the injury on the staircase was separate and distinct from the fire burning on the 19th floor. Menard further testified that had it not been for the unknown woman running into him, he would not have suffered an injury. Menard also testified that no violations or defects existed in the stairwell where the accident took place.
In his opposition to the motion, plaintiff provides his own expert affidavit, a copy of the lease and photographs of some of the apartment's balconies taken from outside the building. Menard's fire expert blames the cause of the fire on an alleged "Collyer's" condition on the balcony. The reasoning follows that, had defendants not allowed the condition to exist, a fire would not have started, the fireman would not have been needed to respond and Menard would not have been on the stairwell to be injured by the unidentified woman. Hence, defendants' negligence in allowing a Collyer's condition indirectly caused plaintiffs injury. For the following reasons, this court disagrees with plaintiff's attenuated logic.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). In a GML § 205-a case, a defendant has to show either that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff's injuries in order to establish entitlement to judgment as matter of law (Giuffrida v. Citibank Corp., 100 NY2d 72 [2003]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]).
New York originally followed the common law "firefighter's rule" which barred recovery in negligence suits for injuries suffered in the line of duty. Traditional support for the old rule was grounded in the belief that firefighters assumed the risk of the dangers connected with their jobs. In 1935, the legislature sought to alleviate the harsh results of the rule by enacting GML § 205-a, an exception to the traditional "firefighter's rule." As currently amended, the pertinent part of GML § 205-a provides: [*3]
In addition to any other right of action or recovery under any other provision oflaw, in the event any accident, causing injury, death or a disease which results in death occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of injury or death shall be liable to pay any officer, member, agent, or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department . . .
In sum, GML § 205-a gives an injured firefighter the right to recover against any party whose neglect or omission to comply with governmental requirements results, directly or indirectly, in the firefighter's injury (see Giuffrida, 100 NY2d at 79; Zanghi v. Niagara Frontier Transp. Commn., 85 NY2d 423, 441 [1995]; Terranova v. NYC Tr. Auth, 49 AD3d 10 [2nd Dept 2007]). Proof of a reasonable connection between the violation and the firefighter's injury is sufficient for recovery (Malzacher v. 100 Audobon Corp., 276 AD2d 402, 403 [1st Dept 2000]).
Common law negligence requires proof of defendant's duty to plaintiff and a breach of said duty that caused the plaintiff's injury. A defendant cannot be found liable unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent (Sanchez v. State, 99 NY2d 247 [2002]). Only reasonable foresight is required, not prophetic vision (Morris v. Troy Sav. Bank, 32 AD2d 237 [3rd Dept 1969]). The court determines whether foreseeability is a matter of law or a jury issue (Carradine v. New York, 16 AD2d 928 [2nd Dept 1962], rev'd on other grounds, 13 NY2d 291 [1963]).
An intervening act by a third person can sever the causal connection between defendant's negligence and plaintiff's injury if the intervening act is not a normal or foreseeable consequence of the situation created by defendant's conduct (Parvi v. City of Kingston, 41 NY2d 553, 560 [1977]). When the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus. Where only one conclusion may be drawn from the established facts, the conclusion of whether the act is superseding or not can be decided as a matter of law. (Derdiarian v. Felix Contr. Co., 51 NY2d 308, 315 [1980]).
Here, Menard has failed to show either that a Collyer's condition existed on the balcony of apartment 19E or that defendants had notice of the condition on this particular balcony. A Collyer's condition refers to an apartment or room cluttered with and stockpiled with possessions or debris. The name comes from the burning of a 1947 mansion in Harlem, where two brothers died because firemen were unable to enter the building due to the multitude of items blocking the door. A Collyer's condtion, if it were to exist, could violate fire code ordinances and result in violations against the property owner. Here, Menard claims a Collyer's condition existed on the balconies of numerous apartments in the building, that the owner and property manager had constructive notice of this condition and were negligent in not rectifying the situation, which allegedly caused the fire.
Menard provides photographs of some of the balconies taken from outside 1131 Ogden [*4]Avenue that show some cluttered balconies. The pictures do not indicate that any of these balconies belong to apartment 19E. Further, the photographs reveal some balconies that are completely empty. While the defendants were undoubtedly aware that at various, random times some tenants had clutter on their balconies, the problem, from the photographs, do not appear to be as widespread as claimed. The balconies pictured show only that some items were placed on some of the balconies. Some items stored on a balcony do not constitute a Collyer's condition. This evidence, alone, is insufficient to establish that defendants Highbridge and Aries had constructive notice of alleged violations.
Deposition testimony shows that the superintendent and property manager did not have actual notice of an overly-congested balcony on 19E. Furthermore, the property manager sent a notice to all tenants once a year before the summer season providing guidelines for what was permissible on the balconies. The fire report does not mention a Collyer's condition before or at the time of the fire, rather, it only states the fire was started because of a lit cigarette igniting clothes left out on the balcony.
Plaintiff's theory that a Collyer's condition caused his accident is speculative. The tenant stated that there were "a lot" of clothes out on the balcony. The only person in a position to determine whether the amount of clothes constituted such a violation, however, was the Fire Marshall and he did not report any violation or the existence of a Collyer's condition. Nevertheless, even assuming a Collyer's condition did exist at the time of the fire, there is no testimony defendants had notice of the condition. A general awareness that a dangerous condition might exist is not enough to establish actual or constructive notice (see Gordan v. American Musuem of Natural History, 67 NY2d 836 [1986]). There is no testimony defendants had a right to inspect tenants' balconies at regular intervals to ascertain whether they complied with the building's rules. Without an underlying violation no GML § 205-a claim can stand.
Also it cannot be viewed as foreseeable that a cigarette blowing in from the sky and landing on clothes piled on a particular balcony would start a fire that would lead to an unknown woman panicking and knocking a firefighter over on the stairs. This outcome lies entirely outside the ambit of foreseeability (see Palsgraf v. Long Island R. Co., 249 NY 511 [1928]).
Assuming arguendo, that a Collyer's condition were documented here and defendants had notice, Menard's cause of action still fails because of the intervening and superseding act by the unknown woman who collided with Menard and knocked him down, causing the injuries. While it may be foreseeable that during a fire caused by a violation tenants will come running down the stairwell, it is not foreseeable that, when the stairwell is wide enough and not defective, a collision between a firefighter and one of those tenants will occur. Here no violations existed as to the stairwell. Menard does not claim he slipped or tripped on broken steps. He admits that the only reason he suffered injuries was because an unidentified woman knocked him over. Further, two other women and this woman managed to successfully bypass the two firefighters ahead of Menard without incident. Menard was the victim of an unfortunate accident that was not caused by defendants and was suffered in the course of his duties as a firefighter. Accordingly, Menard is barred from recovery as a matter of law.
For the reasons stated above, Menard cannot recover for common law negligence or under GML § 205-a as a matter of law; therefore, defendants' motion for summary judgment is granted. [*5]
Movant is directed to serve a copy of this order with notice of entry upon the Clerk of Court who shall enter judgment dismissing the action.
This constitutes the decision and order of the court.
July, 2009
Bronx, New YorkBETTY OWEN STINSON J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
