Cotter v Pal & Lee, Inc.

[*1] Cotter v Pal & Lee, Inc. 2009 NY Slip Op 52815(U) Decided on October 5, 2009 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2009
Supreme Court, Bronx County

Thomas Cotter and Rose Cotter, Plaintiffs,

against

Pal & Lee, Inc.; 2379 8TH CORP.; KENNEDY FRIED CHICKEN CORP. and MOHAMMED FAIZ, Defendants.



14892/2006

 

Counsel for plaintiff:Jonathon O. Michaels

Pena & Kahn, PLLC

1200 Waters Place, Suite M102

Bronx, New York 10461

718-585-6551

Counsel for defendants Mohammed Faiz and Kennedy Fried Chicken Corp.:

Tara L. Wolf, Esq.

Marshall Conway Wright & Bradley, PC

116 John Street

New York, New York 10038

212-619-4444

Counsel for defendant Pal & Lee, Inc.:

Michael V. Longo

Miranda Sambursky Slone Sklarin & Verveniotis, LLP

570 Taxter Road, Suite 561

Elmsford, New York 10562

914-345-6510

Betty Owen Stinson, J.

This motion by defendants Pal & Lee, Inc., and 2379 8th Corp. (collectively, "Pal") for [*2]summary judgment dismissing the complaint and all cross-claims against it and for a declaration that Pal is entitled to a defense and indemnification from co-defendants Kennedy Fried Chicken Corp. and Mohammed Faiz (collectively, "Faiz") and motion by Faiz for summary judgment dismissing the complaint and all cross-claims against him are consolidated for disposition and granted to the extent that the complaint against all defendants is dismissed. With regard to Pal's cross-claim for defense and indemnification, the claim for indemnification is denied in light of the above disposition. The claim for a defense from Faiz's insurer is dismissed with leave to bring as a declaratory action against the insurer.

Plaintiff Thomas Cotter ("Cotter" or "plaintiff" herein) was a firefighter working to put out a fire at defendant Faiz's Kennedy Fried Chicken restaurant, in a building owned by defendant Pal, when Cotter allegedly injured his knee and thumb in a trip and fall inside the restaurant. Cotter brought this lawsuit against the building owner Pal and the building's tenant Faiz, alleging Cotter's injuries were the result of defendants' violation of various Administrative Codes and statutes. After the note of issue was filed, Pal moved for summary judgment dismissing the complaint and all cross-claims against it and for defense and indemnification from Faiz. Pal argued that there is no common law cause of action in negligence against it under the "firefighter rule", that Pal was not in control of the leased space in which plaintiff is claiming he was injured, and that Pal did not violate any code section or statute with a reasonable connection to plaintiff's claimed injuries. At the same time Faiz moved for summary judgment dismissing the complaint and all cross-claims against him, arguing that any code violations regarding structural conditions were the responsibility of the building's owner under the lease and there were no defects in the restaurant's floor.

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]). A party opposing a motion for summary judgment 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]). An expert may only reach conclusions on the basis of established facts (Wright v NYCHA, 208 AD2d 327 [1st Dept 1995]). Evidence may not be submitted to a jury which would require the jury to speculate (Feblot v New York Times Co., 32 NY2d 486; Smith v Wisch, 77AD2d 619 [2nd Dept 1980]).

The "firefighter rule" precludes police officers and firefighters from recovering damages for injuries caused by negligence in the very situations that create the occasion for their services (Zanghi v Niagara Frontier Transp. Comm., 85 NY2d 423 [1995]). Common law negligence claims are permitted only where a firefighter or police officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any duty that increased the risk of injury (id. [common-law negligence claims properly dismissed where police officers who slipped on stairs rushing to aid co-worker were injured because of nature of duty they were performing]).

An additional exception to the firefighter rule is provided by General Municipal Law § 205-a when there is a practical or reasonable connection between the firefighter's or police officer's injury and violation of a statute, ordinance, rule or code by the owner of property where the fire or other incident occurred. The statute reads, in pertinent part, as follows: [*3]

In addition to any other right of action or recovery under any other

provision of law, in the event an accident, causing injury, . . . 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 the federal, state . . . or city governments or of any

and all their departments, divisions and bureaus, the person or persons

guilty of said neglect, omission, willful or culpable negligence at the

time of such injury . . . shall be liable . . . .

To state a cause of action under the statute, a firefighter must (1) identify the statute, rule or ordinance with which defendant failed to comply, (2) describe the manner in which the firefighter was injured and (3) set forth the facts from which it may be inferred that defendant's negligence directly or indirectly caused harm to the firefighter (Giuffrida v Citibank Corp., 100 NY2d 72 [2003]). New York City Administrative Code §§ 27-127 and 27-128, generally requiring owners to keep buildings safely maintained and in safe condition, can provide the predicate for a GML § 205-a violation (Terranova v NYCTA, 49 AD3d 10 [2nd Dept 2007]). While notice of the violation is essential under GML 205-a, it can be established by inference (Lusenskas v Axelrod, 183 AD2d 244 [1st Dept 1992]). To satisfy the "indirect" standard, a plaintiff need only establish a reasonable or practical connection between the statutory or regulatory violation and the claimed injury (Downey v Beatrice Epstein Family Partnership, 48 AD3d 616 [2nd Dept 2008]).

In support of its motion for summary judgment, Pal offered the plaintiff's bills of particulars; a copy of the lease; the deposition testimony of Mohammed Faiz, Cotter and Hyo Park; an Incident Report with Unit Narrative; a Fire Incident Report; an insurance investigator's report and two letters from Tower Insurance Company. The plaintiff's bills of particulars alleged injuries including aggravation of a pre-existing collateral ligament condition in Cotter's left thumb and a torn medial meniscus in his right knee due to hazardous conditions causing or contributing to the fire in violation of various Administrative Code sections and Multiple Dwelling Law and tripping hazards due to obstructions in the entrance of the restaurant. Plaintiffs also alleged the existence of holes and/or uneven floor. In a supplemental affidavit in support of its motion, Pal added the deposition testimonies of Carlos Munroe, Vincent Farrell, Joel Gerardi and Philip Meagher, depositions obtained after the note of issue was filed and both summary judgment motions had been made on March 10, 2009, and before plaintiff offered his affidavit in opposition on August 10, 2009.

Faiz testified that, beginning in 1997, he had a ten-year lease for his restaurant that terminated approximately two years early because of the fire (deposition of Mohammed Faiz, September 11, 2008 at 9). When he first rented the space, the building was vacant and there was a box shape painted on the outside of the building with an "X" on the inside of the box (id. at 17). Faiz did not know what it meant (id. at 17, 50). The lease covered only the first floor and the basement of the five-floor building. There was no access to the upper floors if the restaurant was closed (id. at 50). Faiz spent about $90,000 on renovations to set up the restaurant, including adding additional structural support to the first floor from the basement, two new beams and tar paper on the roof and an entirely new floor throughout the first floor of the building, which consisted of new plywood over the beams, metal screening and a two-inch layer [*4]of cement covered with ceramic tiles (id. at 10, 38-41). Faiz also put in new walls and ceiling (id. at 80). Faiz's contractor had permits for the construction and it was inspected by the Fire Department and the Health Department (id. at 62-63). The Fire Department inspected the place every six months (id. at 63). There were no holes in the floor when the floor tiles were laid (id. at 65). At the time of the subject fire, the floor was eight years old, there were no holes in it and the tiles were not chipped or broken (id. at 65-66, 83-84). There was a fire suppression system near the pizza oven connected to the exhaust equipment, but no smoke detectors or sprinkler system (id. at 40-41, 72).As a result of a court action, Pal at one point agreed to block some open windows on certain upper floors of the building and they were then blocked with plywood (id. at 20-21). The windows on the upper floors at the front of the building, however, were always open (id. at 28). The roof was also repaired at some point by the landlord (id. at 12). Around 2004, someone set an abandoned car next to the building on fire and the Fire Department was called (id. at 18-19). There had been no other fires. One or two months before the fire, some guy wanted to buy the building but the owner did not want to sell (id. at 47).

On the night in question, Faiz closed the restaurant at about 1:00 a.m. (Id. at 66). There were no holes in the floor when he closed up (id.). He had cleaned the restaurant thoroughly because he was expecting a Health Department inspection (id. at 79). At about 3:00 a.m. that same night, the Fire Department called him about the fire (id. at 34). After the fire, Faiz went back to the building and saw that the upper floors had all collapsed into the basement, but the first floor customer area of the restaurant was still intact (id. at 35). The customer area was about 17 feet long and had seating provided by four movable booths, each seating four people (id. at 82-85). There was a counter with bullet-proof glass at the front of the store, then the customer area; about 5 feet more and a food warmer, all with no damage (id. at 42). The money Faiz had left in the cash register was still there. There were no holes in the floor in the area that was still intact after the fire (id. at 74, 84). A neighbor told him that a "blast" or a "boom" was heard on the night of the fire and the fire started about 5 or 10 minutes later (id. at 48). A pilot light was always on even when the equipment was turned off and the store was closed (id. at 78).

Cotter began working with the Fire Department in 1992 (deposition of Thomas Cotter, March 17, 2008 at 10). The last day Cotter was employed by the Fire Department was August 1, 2006, almost one year after the subject fire on September 15, 2005 (id. at 9). At the time of his deposition Cotter was on three-quarter disability because of the condition of his left thumb and perhaps because of his right knee as well (id.).

On the night of the fire, Cotter's station received a call around 2:00 a.m. (id. at 28). When firefighters arrived at the subject building Cotter saw the painted box with the "X" (id. at 32). This usually meant there were no people inside (id. at 39). There was smoke coming from underneath the door and pushing out of seams in the door (id. at 35-36).The Kennedy Fried Chicken sign above the store appeared new (id. at 34). Some of the upper windows were blocked with cinder block (id. at 36). Cotter could not see the rest of the windows because of the "dark, heavy smoke", even outside of the building (id. at 36-37). The Captain reportedly ascertained there was no fire in the basement because the heat was coming out at the firefighters from "above" (id. at 46).

When other firefighters opened the gates at ground level, Cotter and three others put water into the first floor from the sidewalk with a 2-1/2 inch hose (id. at 166). Then they [*5]advanced inside, putting "tons of water" on the fire (id., 55). George Hopkins was the "nozzleman", or first in line (id. at 26). Next came Cotter very close behind Hopkins as the "back-up" (id. at 12). The third person to hold the line was denominated the "doorman" and the fourth, the "control" (id. at 26-27). There were numerous "obstacles" and "holes" in Cotter's way which prevented him from advancing the hose line and making progress with the fire (id. at 47, 57,165). He could not actually say they were holes; he was "just stumbling around, falling" (id. at 151). He was "stumbling every step" (id. at 58). It was "smokey, smokey, dark, dark" and Cotter was worried about getting burned (id. at165). There were "fixtures" from the restaurant "all over the place", like a salad bar or booth or chairs and silverware all over (id. at 47-48). Cotter was "sure" some of the obstacles were knocked over by the pressure of the hose (id. at 165). That hose was powerful enough to move a couch "a little" and he had seen it blow a hole in a tin roof (id. at 168). Taking the hose in was basically a "straight run" although they were "trying to get over stuff" (id. at 151).

He was inside of the building about 10 to 12 minutes, but could not really tell how far he advanced, he guessed maybe 25 to 40 feet (id. at 54). At one point,

I stepped in, it just wasn't part of the floor. I stepped in it,

twisted, got my foot stuck and I tried to get out and my knee

twisted and I felt a pinch and as I was losing my balance I

went to brace my fall and . . . . hit [a thumb on] whatever was on

the table or whatever it was. I'm not sure if it was a bottom of a

whatever it was and then I knew my day was over (Id. at 55-56).

Cotter could not say what he stepped in: "Do I know for a fact? No" (id. at 56). He "fell like a ton of bricks" (id.). He thought the "something" he stepped in was a hole between two floor joists (id. at 57). But, "I did not go through the floor. It was not like that, no" (id. at 59). On the other hand, the "hole" went "into the floor in the ceiling, the ceiling on the floor below so it went from one point of the joist to the other", a distance of "six inches, seven inches" (id. at 63-64). Cotter did not know what the floor was made of (id. at 57). He could only guess (id.). The chief then ordered everyone out of the building (id. at 62). Cotter and the others "didn't even try to drag the hose out of the house" (id. at 62). They just "left it there" (id. at 67).

Cotter was able to exit the building without help (id. at 68-70). He did not go to the hospital, but left after his shift was over to get help for his swollen thumb (id. at 88). He had a prior injury to his thumb, with ruptured tendons and ligaments, resulting in surgery in 2003. He then re-injured it a couple more times (id. at 72). After some visits with the doctor following the subject fire, a second surgery for his thumb was scheduled and it was at the time of that second surgery on October 15, 2005 that the doctor noticed Cotter limping and diagnosed a torn medial meniscus (id. at 175-176).

Hyo Park was president of the corporation that owned the subject buildingwhen the first floor and basement was leased to Faiz (deposition of Hyo Park, September 11, 2008 at 9-10, 85). The building was vacant for about 1-1/2 years between the time a dry cleaning business stopped operating there and the time Faiz leased the premises (id. at 17-18). The windows on the 2nd, 3rd, 4th and 5th floors of the building were blocked by cement blocks (id. at 36-37). There were apartment walls and doors on the 2nd and 3rd floors, but the 3rd and 4th floors were open, the interior walls removed (id. at 39, 51-52). There were no kitchens or bathrooms on any of the [*6]upper floors. There were no mattresses or furniture on those floors, but on the 2nd and 3rd floors there were racks with some items of clothing left from the cleaning business that had occupied the building at one time (id. at 20, 56,). There were bricks and pieces of wood on the 3rd and 4th floors (id. at 46). Mr. Park had the roof repaired once when Faiz complained of leaks (id. at 40-41). Mr. Park came to the property every month or two to collect the rent (id. at 64). The building was completely demolished by the City of New York two or three months after the fire (id. at 11) and the lot was then sold to Gotham Construction Corporation for 1.3 million dollars (id. at 66-67). Mr. Park had received offers to buy the property before the fire from Gotham and inquiries from brokers representing other parties as well (id. at 67). He did not know if the value of the property changed after the building was gone (id. at 69).

A Fire Department Incident Report form was generated on March 15, 2006, six months after the fire, under the name of Joel C. Gerardi. The type of incident was described as a "[b]uilding fire". The cause was listed as "[a]ccidental - [e]quipment or heat source failure". The area of origin was "[c]ooking area, kitchen". The heat source was "[r]adiated, conducted heat from operating equipment". A factor contributing to ignition was "[h]eat source too close to combustibles". Equipment type was a "[d]eep fryer" and the power source was "[n]atural gas or other lighter than air gas".

An attached Unit Narrative provided a time line for the firefighting operations and noted a heavy fire condition in the first floor rear and the box with an "X" on the outside of the building, "indicating vacant/exterior operations only". Two 2-1/2-inch hand lines were operated from the front of the building while awaiting the arrival and set-up of tower ladders to address the fire from the exterior. The exterior operations with tower ladders took two hours to extinguish the fire "with heavy water and damage throughout fire building". Firefighters Vincent Farrell and Carlos Munroe, along with two others, went to the hospital with minor injuries. Their injuries were, respectively, "Contusion to left Calf", "Strain to right ankle, "Lower Back Pain" and "Sprain to left wrist". Firefighters Hopkins and Cotter and two others went sick upon return to quarters with injuries listed, respectively, as "Lwoer [sic] Back", "Left Thumb", "Lower Back" and "Lower Back Strain".

The Fire Incident Report by the Bureau of Fire Investigation of the New York City Fire Department, authored by Fire Marshal William Steinbuch III, was dated September 15, 2005, the same day as the fire. Under the heading "Origin and Extension", the report noted the building as "abandoned" and stated that "[e]xamination [was] precluded due to the instability of the subject building. Investigation disclosed that the fire originated in the subject building in combustible material in heat from a source introduced thereto." The cause of the fire was listed as "Incendiary - Combustible Material". Chief Tobin told the fire marshal that the fire was "from top to bottom upon FDNY arrival". The building was boarded up and firefighters "forced entry". The case was closed pending further information.

Mammone & Company, Fire and Arson Consultants, Inc., were hired by Tower Insurance Company, Faiz's insurer. The report was issued by its expert, Philip Meagher, a former fire marshal and veteran of the New York City Fire Department. He visited the site, examined the Incident Report and the fire marshal's report and interviewed defendant Mohammed Faiz and his brother Ali Faiz. Meagher concluded that this fire's origin and cause were "undetermined" due to the inaccessibility of the premises. The roof and floors 2 through 5 with all their structural [*7]components had collapsed into the first floor and cellar along with the north, south and rear exterior walls. Only the very front interior of the first floor was accessible. Observable charring on several of the remaining ceiling joists in the front area and the configuration of the fire spread char patterns on these ceiling joists suggested that the causative heat and flames impacted on them in a downward direction from above. The definitive cause of the fire was not possible to ascertain given the collapsed and hazardous conditions. The possibility that the fire may have originated at the "exterior rear of the subject" could "not be discounted or eliminated". According to Mr. Meagher, the fire marshal's report determined the cause of the fire to be "incendiary", in other words, an intentionally set arson fire. Chief Gerardi's Incident Report with the opinion that the fire was caused by radiant heat from a natural gas-powered deep fryer, too close to combustibles, was in "obvious" conflict with the fire marshal's opinion. Chief Gerardi's report provided no explanation for his conclusions.

The large painted "X" on the building was placed there sometime in the past by the Fire Department indicating that the building was vacant, that the FDNY had extinguished one or more extensive fires in the interior, the interior was structurally hazardous and firefighters responding to subsequent fires in the building should use extreme caution and should extinguish the fire from the exterior. Battalion Chief Girardi's report indicated that this prompted him to use high caliber water streams from the exterior for 2 hours to extinguish the fire. It was Meagher's opinion that the pre-existing compromised structural integrity of the building and the use of high caliber exterior water streams for an extended period of time greatly exacerbated the final results of this fire incident.

Ali Faiz was interviewed by Meagher and reported that he and his brother Mohammed were the owners of the Kennedy Fried Chicken restaurant that burned in the fire. Ali Faiz reported he has owned another fried chicken store at another location for 20 years and has never had a fire there or in his home. He called the owner of the building the day after the fire and was told the owner went to Korea. About one year before the fire, the owner offered him $10,000 to move out of the building. Ali Faiz had a surveillance camera in the back of the store pointing to the front counter but the recording tape was in the basement and unretrievable. Also unretrievable was over $3,000 in a safe in the basement that was intended to pay for a delivery that Faiz had been expecting. About one month prior to the fire someone started a fire outside the rear wall of the building, but it did not get into the store. Mohammed Faiz was the manager of the restaurant and closed and locked the store at about 1:30 a.m. He told Meagher he was sure all gas burners and lights were off, including the burner for the deep fryer, and there was no odor of gas or other unusual odor in the store when he left. Several photographs of fire damage were included with Meagher's report, none of which showed the condition of the floor in the intact front area of the restaurant.

Letters from Tower Insurance Company, responding to the tender of defense by Pal, rejected the tender, ostensibly because Tower Insurance could not confirm the origin of the fire, Pal did not make its claim as soon as practicable and any claim on Tower Insurance would be in excess over Pal's own liability insurance.

Carlos Munroe testified that he is a firefighter normally stationed in Brooklyn, but was assigned to a Bronx fire house, Engine Company 37, on the night of the subject fire together with firefighter Vincent Farrell (deposition of Carlos Munroe, June 2, 2009 at 9-11). Theirs was the [*8]first company to arrive (id. at 16). He remembered Captain Gerardi and Farrell and that there were two others (id. at 9-11). He did not specifically remember Cotter (id. at 13, 62). Upon arrival they encountered a heavy smoke condition, with smoke coming through the brick, from the top, bottom and sides (id. at 17, 33). Munroe remembers the windows being boarded up (id. at 59). When the gate in front of the restaurant was lifted, there was a "rolling smoke pattern" against the glass with flames on top, indicating the area was somewhat "pressurized" (id. at 19). An area is pressurized depending on how sealed it is (id. at 48). They sprayed water on the fire from the outside for about one or two minutes before entering through the door to the restaurant (id. at 22-23, 59). There were other hose lines from other companies as well (id. at 33). Munroe was the third person on his hose line, in the "door" position (id. at 23). He could not remember who the nozzle man was (id. at 24). Vincent Farrell eventually became the nozzle man when the nozzle man on their line left (id. at 24, 25). Munroe did not remember why the nozzle man left (id. at 63). Munroe then became the second in line, or the "back-up" person (id. at 25). When they went deeper into the building, there was a lot of "debris" in the form of tables and chairs that were "knocked over" (id. at 28). He did not remember if the water knocked them over (id.). He did not remember holes in the floor or in the ceiling (id. at 29, 32, 33, 36, 38, 60). Visibility was poor because of the heavy smoke (id. at 33). There was a big counter and it seemed there was a kitchen area deeper inside (id. at 30). They never actually passed the counter; they were in a line parallel to the counter (id.). Most of the heat and flames seemed to be coming from the kitchen area (id. at 30-31). They did not advance further because they were trying to cool the area down (id. at 70). Then they were called to retreat (id. at 34, 70). They took their hose with them as they retreated (id. at 37). Munroe injured his ankle stepping on something or hitting his foot on something (id. at 38). He cannot remember what it was (id., 64). He did not step in any holes (id. at 36). He did not remember anyone else saying he fell in a hole (id. at 44). He did not remember anyone complaining about an injured thumb or knee (id. at 41). Munroe remembered being questioned by some type of investigator perhaps a year before the deposition (id. at 42-44). When shown a signed statement with his name on it, Munroe did not remember signing it or even seeing it before, but acknowledged his signature on the page (id. at 43-45). The statement mentioned holes on the floor, but Munroe did not remember holes at the time of his deposition; he could only remember tables and chairs (id. at 51-52). He did not know how the fire started (id. at 39). The fact that the kitchen was a hot spot would not necessarily cause him to think the fire started in the kitchen (id. at 39).

Joel Gerardi was a new battalion chief at the time of the subject fire (deposition of Joel Girardi, June 10, 2009 at 18). A battalion chief's duties included being the "incident commander" (id. at 8). That meant he was in charge of the fire until relieved by someone of higher rank (id.). The Fire Department's building marking system was as follows: using an empty box indicates a building of normal stability and safe to enter (id. at 12-13). One slash inside the box means interior operations are permissible but with extreme caution (id.). A complete "X" inside the box means operations should be from the exterior; however, interior operations are permitted (id.). The marking "RO" on top of the box means the roof is open (id.). Sometimes an owner comes back after the building has been marked and fixes some aspect of the building and then the marking on it may no longer be accurate (id.).

In the case of the subject fire, Chief Gerardi's crew went in with one hand line and then [*9]went to exterior operations because it was determined there was a very heavy fire condition in the building (id. at 14). Chief Gerardi would not have given a command to enter; fire fighters self-deploy (id. at 15). Once it would have been determined there was no hazard to life, or that no one would have survived the fire as it was, Gerardi ordered withdrawal of the hand line and exterior operations were employed for safety reasons (id. at 25). Prior to ordering the withdrawal, he did not learn about anyone being injured or learn about the existence of any holes in the floor (id. at 25-26). He did not recall anyone saying anything about obstructions or about tripping afterward (id. at 48).

Chief Gerardi believed the windows in the subject building were bricked up (id. at 45). It was in a state of disrepair and appeared vacant (id.). When one of the roll-down gates was opened, one of the officers was trying to go up the stairs and Chief Gerardi told him and all the others not to go up there because they might not be able to exit safely due to a big restaurant cooler in front of the stairs (id. at 19). The restaurant's entrance had a larger door (id. at 21). The fire appeared to be in the rear of the restaurant (id. at 22). There was actually fire in the rest of the building, too, but Chief Gerardi did not know it at the time (id.). He remembered being told later there was also fire on the second floor in the rear (id. at 23). Thermal imaging cameras had been used to tell where the high heat was, but there was no way to tell which area had the larger fire (id. at 23).

Gerardi did not enter the building himself and did not conduct an independent investigation of the fire (id. at 29, 46). Investigation was not his job (id. at 29). At some point, Deputy Chief Tobin relieved Gerardi as incident commander (id. at 27-28). Gerardi continued to coordinate activities (id. at 28). It was daylight when he left the scene (id. at 29). He most likely left when the fire was categorized as "probably will hold", meaning that it would be brought under control (id. at 29). "Under control" would have meant the fire was out (id.). If there was any suspicion of arson, he would have entered a code 1041 calling for fire marshals to respond to the scene (id. at 29-30, 48)). Fire marshals do not respond to every fire (id. at 30). He probably did give the code that night (id. at 48). One reason to suspect arson is a very heavy fire or a fire with no apparent reason (id. at 30-31). In this case, Gerardi thought it "likely" there was a deep fryer in the kitchen, since the location was a fried chicken restaurant and, therefore, the fire "probably" had something to do with the deep fryer because it appeared the fire had begun in the kitchen (id. at 31, 41, 50). A restaurant would not be required to have a sprinkler system, only an "Ansul" system (id. at 43). An example of a "heat source too close to combustible" material could be a stove next to a wall, since the interior structural components of a building such as walls and floors are all combustible (id. at 40). The remark "equipment failure" in his report meant "some sort of defective equipment" or maybe the stove was left on (id. at 37). This was, however, "pure opinion" on his part (id. at 46). He did not know what caused the fire (id. at 40). His report was probably generated by the dispatcher who just wrote down whatever Gerardi said over the radio, providing an accurate time line for the operations (id. at 18). Gerardi had never seen the report before his deposition (id.).

Vincent Farrell is another firefighter who was present at the subject fire (deposition of Vincent Farrell, June 2, 2009 at 7). Farrell entered the building through the front door with a hose as the back-up or second person in line (id. at 12-13). Carlos Munroe was the "door man" or third person in line (id. at 13). There was heavy fire and smoke on the first floor (id. at 15). [*10]There was a lot of "debris" or "obstructions" in the form of tables and chairs and "other stuff" Farrell could not see (id. at 16, 33-34). Farrell fell a couple of times, probably because of the debris (id. at 18, 46).He did not see any holes in the floor (id. at 18). As he was advancing, it is "possible" he fell because of a hole (id. at 18, 49). His foot got caught in something and he could not see exactly what it was, whether a "build up of debris" or a hole, but it was "probably" a hole (id. at 33-34, 47-49). "It had to be something" (id. at 47). After a while, they were advancing on their knees because of the heat (id. at 50). He could not remember a salad bar or counter (id. at 19). He could not see (id. at 19). He did not remember flames, only smoke (id. at 20). At some point, he became the nozzle man on the hose because "something happened" to the nozzle man who told him he was backing out, so Farrell took over the line's first position (id. at 22). Farrell did not remember seeing the first nozzle man fall (id. at 31). He did not know what happened to him (id. at 22). When Farrell was farther into the building, the water was building up for some reason and was almost up to his knee (id. at 24-25). It scalded him and he got second degree burns on his left leg (id. at 23-24). Right after that, they were all pulled out of the building (id. at 25). Farrell remembered Carlos Munroe saying he was injured, but did not remember anyone saying he had injured a knee or thumb (id. a 26-27). Farrell left the scene by ambulance (id. at 27).

Philip Meagher has worked for Mammone & Company Fire and Arson Consultants, Inc., since 1997 (deposition of Philip Meagher, February 5, 2009 at 6, 11). He was a fire marshal in New York City for 12 years and a firefighter for 13 years before that (id. at 12-13). His company was hired by Tower Insurance Company to identify the cause and origin of the fire (id. at 11, 43). He examined the scene of the subject fire on September 26, 2005 (id. at 7). He found floors 2 through 5 totally collapsed into the basement, including the roof and great parts of the side walls and rear wall (id. at 15, 18). All floor joists were gone (id. at 18). Few areas of the building were remaining and windows were boarded up (id.). Meagher could only get 8 to 10 feet into the front of the building (id. at 18).There was a painted box on the front of the building with an "X" inside it, indicating a vacant building (id. at 15). The symbol means interior conditions are hazardous and fire fighters are to use exterior attack only (id. at 16). Whether or not fire fighters enter would most likely be at the direction of the fire chief in charge of the scene (id.). Where window are open, they allow air flow which always increases the intensity and spread of a fire (id. at 22). Prior fires weaken the structural components of a building (id. at 40). Faiz, when interviewed by Meagher, said there was a gas stove and deep fryer in the restaurant (id. at 39).

Meagher considered Gerardi's report and the fire marshal's report in preparing his own (deposition of Philip Meagher, February 10, 2009 at 10). Gerardi's report listed the cause of the fire as accidental equipment or heat source failure and the origin as the cooking area of the kitchen. Meagher disagreed with Gerardi's conclusion based on the Unit Narrative portion of the report (id.). According to his report, Gerardi saw the box with an "X" inside and, being a chief, knew what that meant (id. at 10-11). He called for tower ladders which are big platforms at the end of a ladder with a "big, very powerful" nozzle attached to the platform (id. at 11). They are so powerful, they can be used to knock down walls and Gerardi called for three of them, which is a lot (id.). He ordered two 2-1/2" hand lines, the biggest hand line on an engine (id. at 11-12). According to the report, the hand lines never entered the building, but shot water into it from the [*11]front (id. at 12). Once the tower ladders were in place, Gerardi withdrew the hand lines (id.). Then he operated from the exterior for 2 hours (id.). There is no indication he ever entered the building or that any firefighter entered the building (id.). There was no basis, therefore, to say the fire was caused by the deep fryer in the kitchen (id. at 13). The fact that he stretched 2-1/2" hand lines initially and was applying water from the exterior front of the building indicates he encountered a heavy fire condition upon arrival (id.). Given the heavy fire condition at the back of the building, Meagher did not know how it would be possible to isolate the deep fryer as the cause (id.). In addition, a fire chief is not a trained cause-of-origin investigator (id.). His job is to supervise the extinguishment of a fire, not investigation (id. at 13-14). Fire marshals are much more qualified to reach conclusions as to the cause of a fire (id. at 14). Meagher, therefore, considered the report of the fire marshal as well in preparing his report (id. at 13). Based on Gerardi's report, no one entered the building (id. at 16). Firefighters enter buildings to search for people; they search the first floor first and then the floors above that (id. at 16). Based on information from the restaurant owner, someone had previously set a fire against the exterior rear of the building and the exterior rear showed evidence of deep, heavy charring (id. at 18). Meagher could not eliminate the exterior rear of the building or the second floor as possible areas of origin (id. at 18-19). He could not recall noticing any holes in the floor in the remaining store area at the front of the building (id. at 29).

In support of his motion, Faiz offered the same bills of particulars, restaurant lease, report by Mammone & Company and initial deposition testimony as Pal. In addition, Faiz offered a copy of a petition by Pal to evict the restaurant from the building for withholding rent; general construction permit applications, including one for a range hood fire suppression system; a letter from plaintiff's physician to his lawyer and color photographs of the building after the fire. Faiz argued that any violations or structural problems with the building were the responsibility of Pal.

In opposition to both Pal's and Faiz's motions for dismissal of the complaint, plaintiff offered the Incident Report and fire marshal's report; color photographs of the premises after the fire; operative reports from the surgeries to plaintiff's left thumb and to his right knee (with post-operative diagnosis redacted); the restaurant lease; the deposition testimony of Carlos Munroe, Joel Gerardi, Vincent Farrel, Hyo Park and Philip Meagher; and the expert affidavit of Edmund P. Cunningham.

Edmund P. Cunningham stated in his affidavit dated August 10, 2009 that he was employed by the New York City Fire Department from 1969 to 1999. He rose through the ranks from Fire Fighter to Chief of Fire Prevention, a post he occupied from 1995 to 1999. He was responsible for the department's Bureau of Fire Prevention and became familiar with various City and State codes, statutes and rules relating to fire prevention. He reviewed the plaintiff's bills of particulars, all the depositions and reports set forth above and the photographs of the scene taken after the fire and before the building was demolished. Cunningham also reviewed Member Injury Reports dated September 15, 2005 and October 17, 2005, which documents were not offered to the court for review. He noted that Fire Fighter Cotter, at the instruction of the Captain of Engine Company 37, assisted in stretching a hose line to the subject building and, while assisting in the operation of the hose line, injured his left thumb and right knee, injuries which ultimately caused his retirement from the Department. [*12]

Based on Cunningham's review of the above-noted documents and photographs, he concluded that the owner of the building was in violation of New York City Building Code §§ 27-127, 27-128 and 26-235, providing that the owner of a building must maintain it in safe condition. Based on the testimony that the building had missing floors, ceilings, walls and doors; the owner was in further violation of New York City Building Code §§ 27-342, 27-344, 27-345, relating to fire stopping, and 27-371 relating to doors. The owner and commercial tenant obstructed the "only" doorway in and out of the building in violation of §§27-361 and 27-370. By not sealing the vacant and unguarded brick building, the owner also violated the Housing Maintenance Code, Title 28, Department of Housing Preservation and Development, Subchapter W, § 25-251, requiring sealing open windows of a vacant building at the cellar, first floor, and second-floor level with concrete block or boards covered with sheet metal. This also violated Rules of the City of New York, Title 1, Department of Buildings, Chapter 3, Vacant and Unguarded Buildings, § 3.01. Cunningham also concluded that failure to maintain the building in a safe manner and properly seal it resulted in debris and other combustible material to accumulate in the building, allowed holes to exist in the street level flooring, allowed holes in the ceiling between the street level and second floor and allowed exterior openings to exist on the perimeter of the building. This in turn resulted in a fire that should have been contained to a small area in the rear of the store on the first level to extend and intensify rapidly prior to arrival of the Fire Department. These "conditions" obstructed the doorway, created tripping hazards, hampered fire-fighting activities and made the fire more difficult to extinguish. The failure to comply with all the various codes mentioned was a "direct cause" of Cotter's injuries.

Both Pal and Faiz have demonstrated their entitlement to summary judgment dismissing the complaint, which plaintiff has not refuted with admissible evidence. A common law cause of action in negligence is not possible in this situation because it is undisputed that plaintiff was injured while in the performance of his duties as a fire fighter (see Zanghi, 85 NY2d 423). In addition, viewing every inference to be drawn from the evidence in the plaintiff's favor, plaintiff cannot make a prima facie case of negligence under GML § 205-a against either defendant. The admissible evidence does not support a direct or indirect connection between the plaintiff's claimed injuries and the violations alleged against the defendants. Plaintiff's arguments are essentially that defendants' poor maintenance of the building caused the fire to spread and intensify more than it might have done had defendants not violated various building code and statute sections and, furthermore, that defendants allowed holes and "debris" to exist in and on the floor of the restaurant in violation of their duty pursuant to New York City Building Code 26-235 and New York City Building Code §§ 27-127, 27-128 and 26-235, to keep the building in safe condition and safely maintained.

There is no evidence, other than speculation, of the existence of holes in the restaurant floor in violation of the building owner's or tenant's responsibility to maintain the floor in a safe condition. No one who actually entered the building saw holes in the floor. There is no testimony of anyone seeing holes in the floor before the fire. Neither the fire marshal nor Philip Meagher saw holes in that portion of the restaurant floor remaining after the fire. Faiz denied there were ever holes in the ceramic tile floor after he had it installed eight years earlier. Although plaintiff testified there were numerous holes in his way, he also testified he could not really say they were holes, just that he was "stumbling around" and "falling" a lot and that it was [*13]very "smokey" and "dark". When his foot got "stuck" in something, causing him to fall and hit his thumb, he speculated that the "something" was a hole between two floor joists. He did not "know for a fact", however, what it was he stepped in. Munroe, who also injured his ankle stepping on something or hitting his foot on something, testified that he did not step in any holes and he did not remember holes in the floor or in the ceiling. Gerardi never entered the building. Farrell did not see any holes in the floor, although it was "possible" he fell in a hole. When his foot got stuck in something, it could have been a "build up of debris", but it was "probably" a hole. As he testified, "[i]t had to be something". No witness remembered anyone else saying they had fallen into or were injured because of a hole in the floor. A jury faced with this evidence could do nothing more than speculate as to the existence of a hole, an improper exercise of its charge (see Feblot, 32 NY2d 486; Wisch, 77 AD2d 619).

As far as "obstructions" or "debris" hampering fire fighters' efforts, no one was able to identify any "debris" other than tables, chairs, booths, a salad bar and silverware, objects normally found in a restaurant. That the objects may have been out of place after being sprayed with the highest velocity hand-held fire hoses, capable, according to plaintiff, of moving couches and blowing holes in tin roofs, cannot be attributed to the negligence of defendants in keeping the premises safely maintained. The only testimony as to the condition of the restaurant just prior to the fire is that of Faiz, who testified that the restaurant had recently been cleaned in anticipation of a health department inspection and that the booths and seating were never moved.

There is no evidence the intensity and spread of the fire was responsible, directly or indirectly, for plaintiff's injuries. Plaintiff did not know how far he entered into the building. Munroe testified that the fire fighters never got farther than the end of the counter. There is no testimony that plaintiff was injured due to any difficulty entering or exiting the building because a "means of egress" was obstructed in violation of §§ 27-127, 26-235, 27-361, 27-368 or 27-370 regarding obstructing exits, fire escapes, passageways or corridors. Plaintiff testified he needed no help exiting the building. Furthermore, all testimony is that no one went through the smaller door to the building and up the stairs since the floors above the restaurant appeared to be vacant. The fact that stairs to the upper floors were blocked with a restaurant cooler, then, has no practical or reasonable connection to plaintiff's injuries. Section 27-371 regarding height requirements and exit doors is not applicable. None of sections cited by plaintiff under the Multiple Dwelling Law were applicable to this building since it did not house three or more families (see Netral v Lippold, 304 AD2d 491 (1st Dept 2003).

Both the cause and origin of the fire were "undetermined", according to Philip Meagher's report, and the fire's possible origin at the rear exterior wall of the building could not be ruled out. Chief Gerardi, in sworn testimony, explained that any conclusion to the contrary in his fire incident report was based on speculation and "pure opinion", that he did not enter the building himself and that fire investigation was not his job. Furthermore, the very intensity of the fire was one of the suspicious factors he identified as a reason that may have indicated the need to alert fire marshals, who did in fact respond to the scene, in order to rule out arson. The fire marshal's report actually concluded the cause to be "incendiary", rather than accidental equipment failure, and that the fire originated in the building "from a source introduced thereto".

Since the fire was already intense at the time fire fighters arrived, and suspicious as a possible arson precisely because of its intensity, a jury would be required to speculate that the [*14]fire's reported location and intensity on the first and second floor rear of the building at the time of arrival was caused by the lack of self-closing doors and missing floors, ceilings and walls on the fourth and fifth floors in violation of §§ 27-342, 27-344 and 27-345 (relating to fire stopping structural features of buildings). There is no evidence to support that theory. There is no evidence the fire had even reached the upper floors before plaintiff left the building in the first 10 to 12 minutes out of the 2 hours it took to extinguish the fire, making any connection between the intensity and spread of the fire and plaintiff's injuries too remote to qualify as a direct or indirect cause. All testimony and documentary evidence shows that plaintiff was out of the building at least as soon as the tower ladders were set up. Chief Girardi's time line shows that hand lines were employed at 2:15 a.m. and were withdrawn at 2:27 a.m., 12 minutes later. Furthermore, the testimony according to defendants is that the second and third floors had walls and doors and ceilings and that only the fourth and fifth floors were missing interior walls and doors. In addition, § 27-371, relating to self-closing doors, is applicable only to multiple dwellings, not to this building, vacant except for its commercial space on the first floor and basement. There is also no testimony at all that the building had any missing floors, thus contributing to the uninhibited spread of the fire. To the contrary, Munroe's testimony was that the restaurant area appeared to be "pressurized", suggesting it was still relatively sealed at the time of his arrival.

There is no evidence that the building's second-floor windows were not closed with concrete block or boards in compliance with the City's Department of Buildings Rule § 3.01. That section does not require closed windows above the second floor unless they are accessible by fire escapes. Faiz was the only witness to state that any windows were open and those windows were in the front of the building. His testimony was not clear as to which of the floors in the front of the building had open windows. Gerardi remembered the windows as "bricked up", Munroe saw them "boarded up" and plaintiff himself saw some windows visible through the smoke to be blocked with cinder block. But even if such a violation existed, plaintiff has not identified a reasonable or practical connection, direct or indirect, between whatever windows were still open and the plaintiff's trip and fall.

Plaintiff's expert's affidavit does not create an issue of fact for trial. Cunningham never saw the building, either before or after the fire, but examined only the same documents and deposition testimony available to this court. His bare conclusion that code violations, including those related to the generally deteriorated condition of the building; the obstruction of an exit, which was unused by the fire fighters, the speculated existence of holes in the restaurant floor and "debris" all together constituted "a direct cause" of plaintiff's injuries, is offered without further explanation and is devoid of any support in the evidence.

The complaint, therefore, is dismissed as against all the named defendants. Pal's cross-claim for indemnification is also dismissed as moot given that disposition. As for Pal's cross-claim for a defense from Faiz's insurer, that cross-claim is dismissed with leave to bring as a declaratory action against the insurer. Tower Insurance Company is not a party to this action. As seen from its letter in answer to Pal's demand, Tower Insurance Company would apparently assert various defenses, one of which is that coverage for Pal is only excess above any primary coverage had by Pal. Although Pal's president testified he had no fire insurance, it is not known what other coverage if any, Pal might have had for liability with respect to the subject building.

Movants are directed to serve a copy of this order on the Clerk of Court who shall enter [*15]judgment dismissing the action in its entirety.

This constitutes the decision and order of the court.

Dated: October 5 , 2009

Bronx, New York

_______________________________

BETTY OWEN STINSON, J.S.C..