Wozniak v City of New York

[*1] Wozniak v City of New York 2012 NY Slip Op 51108(U) Decided on June 15, 2012 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2012
Supreme Court, New York County

Peter N. Wozniak, Plaintiff,

against

The City of New York, Defendant.



109178/09



For plaintiff:

Joseph L. Decolator, Esq.

Decolator, Cohen, & Diprisco, LLP

1399 Franklin Avenue Suite 201

Garden City, NY 11530

For defendant City of New York:

Michael A. Cardozo

Corporation Counsel of the City of New York

by: Suzanne K. Colt, Esq.

Elizabeth Connolly, Esq.

Assistant Corporation Counsel

100 Church St

New York, NY 10007

Michael D. Stallman, J.

Plaintiff Peter N. Wozniak alleges that, on July 22, 2008, he was a police officer assigned to the Canine Unit of the New York City Police Department (NYPD), and that he was participating in a training exercise on criminal apprehension in a subway tunnel located at East 102nd Street and Second Avenue in Manhattan.[FN1] Plaintiff testified at his deposition that, after the training ended, he proceeded to exit the subway tunnel. (Colt Affirm., Ex G [Wozniak EBT], at 35.)

Plaintiff testified that he walked up a wooden staircase leading to a doorway which he believed to be the exit. (Id. at 35-36.) According to plaintiff, "It was dark, there were no signs." (Id.) Plaintiff testified that he stepped through "the threshold of the doorway, which caused [him] to lose [his] balance because there was approximately a five or six foot drop. . ." (Id. at 36.) When asked if the doorway was the same set of doors that he came through to start the training, plaintiff answered, "No. I stepped through the wrong doorway." (Id.) It is undisputed that plaintiff retired from the police force based on the injuries that he sustained from the fall.[FN2]

Plaintiff commenced this action asserting causes of action alleging defendant City of New York's negligence and asserting a cause of action based on General Municipal Law § 205-e. The City now moves for summary judgment dismissing the action, or in the alternative, for summary judgment in the City's favor against third-party defendant New York City Transit Authority (NYCTA) for contractual indemnification.

DISCUSSION

The standards of summary judgment are well-settled. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action."

(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986][internal citations omitted].)

[*2]I.

Pursuant to a 1953 lease agreement between the City of New York and the New York City Transit Authority (the 1953 lease), "the City relinquished possession and control of all of its transit facilities to the Transit Authority." (McGuire v City of New York, 211 AD2d 428, 429 [1st Dept 1995]; see Colt Affirm., Ex I.)[FN3] The City contends that it was therefore an out-of-possession landlord, which did not owe a duty of care to plaintiff while he was in the subway tunnel area. Plaintiff argues that the City had possession of the subway tunnel and its egresses because the NYPD was using the subway tunnel to conduct a police training exercise. Plaintiff also argues that summary judgment should be denied as premature because the City has not yet been deposed in this matter.

The City, as an out-of-possession lessor of the subway system, which retained no right to supervise or control its operation, cannot be held liable under a common-law theory of negligence for the plaintiff's injuries. (Genco v City of New York, 211 AD2d 615, 616 [2d Dept 1995].) Plaintiff's contention that the NYPD had a key to the area does not raise a triable issue of fact as to whether the New York City Transit Authority conveyed possession of that area of the transit facilities back to the City of the New York. The case that plaintiff cites, Vidas Cousins Realty Corp. v PB & J Assocs. (Nassau Dist Ct 2010), is inapposite. In that case, the court ruled that the tenant waived its right to claim that it had been constructively evicted because the tenant had neither totally abandoned the premises nor surrendered keys to the leased premises until a later date. Here, giving a key to a law enforcement agency for access to areas where law enforcement might be expected to venture is not analogous to a conveyance or retention of possession or control of the premises.

Therefore, defendant is granted summary judgment dismissing the first cause of action. "Plaintiff's mere hope that discovery will uncover evidence needed to defeat summary judgment is insufficient to deny the motion." (Smartix Intl. Corp. v MasterCard Intl. LLC, 90 AD3d 469 [1st Dept 2011].)

II. "Common law barred a police officer from recovering in tort for injuries suffered in the line of duty. In 1989, the Legislature modified the [*3]common law by adding section 205—e to the General Municipal Law (L. 1989, ch. 346); and in 1996, the Legislature largely abolishe[d] the common law by enacting section 11—106 of the General Obligations Law. . . Thus, while a police officer can assert a common-law tort claim against [a member of] the general public, liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205—e.

To make out a claim under section 205—e, a plaintiff must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm. . . .

[A]s a prerequisite to recovery, a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties. At the same time, a series of amendments to section 205—e teaches us that we should apply this provision expansively so as to favor recovery by police officers whenever possible."

(Williams v City of New York, 2 NY3d 352, 363-364 [2004][internal citations and quotation marks omitted].)

Here, plaintiff alleges that the City violated Labor Law § 27-a (3) (a) (1), which provides, in pertinent part, that every employer shall "furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees."

Specifically, plaintiff asserts that the City failed to provide plaintiff with a safe place to work in violation of Labor Law § 27-a (3) (a) (1), in that the lighting in the area where plaintiff was injured was inadequate, and that the City did not inform plaintiff of a safe means of egress from the subway tunnel.

A.

The City argues that a cause of action under General Municipal Law § 205-e cannot be premised on a violation of Labor Law § 27-a (3) (a) (1), because Labor [*4]Law § 27-a (3) (a) (1) does not impose clear duties. The City also argues that the Legislature intended only for administrative enforcement of Labor Law § 27-a. Citing Kelley v Howard S. Wright Construction Co. (90 Wash 2d 323 [Wash 1978]), the City maintains that a private right of action cannot be brought for noncompliance with the Occupational Safety and Health Act of 1970 (OSHA), the statute on which Labor Law § 27-a was based. Therefore, the City contends that permitting Labor Law § 27-a (3) (a) (1) to serve as a statutory predicate for recovery under General Municipal Law § 205-e would give police officers greater rights and remedies than those available to the general public.

A statutory predicate for a cause of action under General Municipal Law § 205-e must "be found in a well-developed body of law and regulation that imposes clear duties." (Williams, 2 NY3d at 364.) "Labor Law § 27-a, known as the Public Employee Safety and Health Act (PESHA), was enacted to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA.' In implementing standards for PESHA, New York has adopted OSHA's workplace safety standards."

(Williams, 2 NY3d at 367.) Because Labor Law § 27-a (3) (a) (1) itself does not set forth objective standards of conduct, but rather requires the employer to provide "reasonable and adequate protection" from "recognized hazards that are causing or are likely to cause death or serious physical harm to its employees," one might argue that the statute itself therefore does not impose clear duties.

However, courts have held that other statutes, which appear on their face to set forth general duties, are valid predicates for liability under General Municipal Law § 205-e. (Gonzalez v Iocovello, 93 NY2d 539 [1999], affg. Cosgriff v City of New York, 241 AD2d 382 [1st Dept 1997] [New York City Charter § 2903 (b) a valid predicate][FN4]; Hayes v City of New York, 264 AD2d 610 [1st Dept 1999] [Multiple [*5]Dwelling Law § 78 a valid predicate, citing Gonzalez, 93 NY2d 359, supra].[FN5]) In response, the City "acknowledges that some courts have permitted rather general and occasionally inappropriate standards to be used as predicates." (Connolly Sur-Sur-Sur-Sur Reply Affirm. at 5 n 4.)

As plaintiff points out, some cases of the Appellate Division, Second Department have held that a cause of action under General Municipal Law § 205-e may be premised upon an alleged violation of Labor Law § 27-a (3) (a) (1). (See e.g. Koenig v Action Target, Inc., 76 AD3d 997 [2d Dept 2010]; Norman v City of New York, 60 AD3d 830 [2d Dept 2009]; Campbell v City of New York, 31 AD3d 594 [2d Dept 2006]; Balsamo v City of New York, 287 AD2d 22 [2d Dept 2001].) In Balsamo, the Appellate Division, Second Department held that "inasmuch as Labor Law § 27-a imposes a clear legal duty on public employers to provide a safe workplace for their employees, and an expansive interpretation is consistent with the over-all goal of [General Municipal Law § 205-e], we find that a violation of Labor Law § 27-a may constitute a sufficient predicate for a claim pursuant to General Municipal Law § 205-e which is based on an allegation of a workplace safety violation."

(Balsamo, 287 AD2d at 28.)

According to the City, the Balsamo court "erred in finding that [Labor Law] § 27-a's general duty' clause codified the employer's common law duty to provide a safe work place so as to create a right to a tort action there under [sic], as opposed to [*6]establishing a basis for solely administrative action." (Reply Affirm. ¶ 28.) The City argues that following Balsamo would conflict with the Court of Appeals's decision in Galapo v City of New York (95 NY2d 568, 575 [2000].)

In Galapo, the Court of Appeals held that the overriding purpose behind the enactment of General Municipal Law § 205-e was to ameliorate the effect of the common-law "firefighters' rule" that disadvantaged police officers, and that "the statute was not, however, to give police officers greater rights and remedies than those available to the general public." Thus, the Court of Appeals ruled in Galapo that a violation of Procedure 104-1 (k) of the New York City Police Department Patrol Guide could not serve as a predicate for recovery under General Municipal Law § 205-e.

However, it is not clear how the Court of Appeals would rule as to Labor Law § 27-a (3) (a) (1). In Williams v City of New York (2 NY3d 352, supra), the City of New York originally argued that Labor Law § 27—a (3) (a) (1), the "general duty" clause, was not a proper predicate for recovery under General Municipal Law § 205-e, but waived this argument on appeal. (Id. at 365 n 3.) Thus, the Court of Appeals "decide[d] this appeal by assuming, without deciding, that this particular provision of the Labor Law is a proper predicate." (Id.)

"Trial courts within this department must follow the determination of the Appellate Division in another department until such time as this court or the Court of Appeals passes on the question." (People v Shakur, 215 AD2d 184 [1st Dept 1995]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984].) Here, the Appellate Division, Second Department clearly decided the question in Balsamo.

Nevertheless, in Link v City of New York (34 AD3d 757, 758 [2d Dept 2006]), the Appellate Division, Second Department ruled that "the complaint fails to allege a specific statute, ordinance, or regulatory predicate for relief pursuant to General Municipal Law § 205—e. Neither the general public safety standard codified in Labor Law § 27—a nor the requirements of the New York City Police Department Patrol Guide are adequate for this purpose." (emphasis supplied.) However, Link did not purport to overrule Balsamo, and Second Department cases after Link have followed Balsamo. (Koenig, 76 AD3d 997, supra; Norman, 60 AD3d 830, supra.)

In addition, the Appellate Division, First Department has held that OSHA regulations "can serve as a predicate to a claim under General Municipal Law § 205-a because they are part of a well developed body of law and regulation and they impose a clear legal duty." (McGovern v City of New York, 294 AD2d 148, 149 [1st Dept 2002].) Because "sections 205—a and 205—e should be construed and applied in the [*7]same way" (Desmond v City of New York, 88 NY2d 455, 463 [1996]), the Appellate Division, First Department might hold that OSHA regulations can also serve as a predicate to a cause of action under General Municipal Law § 205-e.

Therefore, this Court must follow the appellate precedent of the Second Department, which holds that a violation of Labor Law § 27-a may constitute a sufficient predicate for a cause of action under General Municipal Law § 205-e.

B.

The City argues that the alleged condition at issue cannot be shown to be a "recognized hazard" within the meaning of the statute. The City contends that Labor Law § 27-a (3) (a) (1) does not apply in this case because the accident did not occur due to a physical or environmental hazard, but due to plaintiff's mistake of stepping through a door that was not an exit from the subway tunnel, and not on the same level as the door through which plaintiff entered.

Labor Law § 27-a (3) (a) (1) does not itself define a "recognized hazard," but the statute speaks of hazards "that are causing or are likely to cause death or serious physical harm to its employees."

In Williams v City of New York (2 NY3d 352, supra), the Court of Appeals held that Labor Law § 27-a (3) (a) (1) "does not cover the special risks faced by police officers because of the nature of police work." In Williams, two police detectives took custody of a prisoner, pursuant to a "takeout order," and transported him from the Rikers Island Correctional Facility to the District Attorney's office for a polygraph test. Upon arrival at the District Attorney's office, the prisoner was placed in the Detective Squad's locker room, which doubled as a detention area. The prisoner was handcuffed to a metal pipe installed for just this purpose. Despite being handcuffed, the prisoner, while left alone, managed to remove a service revolver from one of the nearby lockers and conceal it on himself. On the return trip to Rikers Island, the prisoner shot and killed the two police detectives with the stolen revolver. The plaintiffs brought civil actions alleging, among other things, that the City was liable for decedents' deaths based on General Municipal Law § 205—e, predicated on, among other things, Labor Law § 27—a.[FN6]

In holding that Labor Law § 27-a (3) (a) (1) "does not cover the special risks faced by police officers because of the nature of police work," the Court of Appeals reasoned, [*8] "The judgments that must be made by police supervisors in minimizing the danger that police officers inevitably face, while at the same time protecting the public, are uniquely sensitive, difficult and important. Police supervisors must decide, among other things, how police officers should use and store their weapons and ammunition; how much security should be provided when prisoners are transported; and where and under what conditions prisoners should be detained. We think it highly unlikely that the Legislature intended the general language of section 27—a to authorize Department of Labor inspectors enforcing PESHA to second-guess the decisions of police supervisors on matters like these."

(Williams, 2 NY3d at 368.)

Therefore, although Labor Law § 27-a (3) (a) (1) applies to "recognized hazards" of the place of employment, exempt from the statute are hazards that involve special risks posed by the nature of police work. Here, the City does not argue that plaintiff's accident involved a special risk posed by the nature of police work.

Where courts have ruled that Labor Law § 27-a (3) (a) (1) was applicable, the recognized hazards in those cases involved premises hazards. (See e.g. Marsillo v City of New York, 17 Misc 3d 612, 615 [Sup Ct, NY County 2007][tripping hazard is a "recognized hazard"]; Siciliano v City of New York, 16 Misc 3d 1129 (A) [Sup Ct, Richmond County 2007] [tripping hazard is a "recognized hazard"]; Singleton v City of New York, 13 Misc 3d 1173, 1177 [Sup Ct, Kings County 2006] [training room was structurally insufficient for training exercises because it lacked adequate padding, and police officer was not provided additional safety equipment to ameliorate the recognized risks of a training exercise].)

However, not all cases predicated on a violation of Labor Law § 27-a (3) (a) (1) involved premises hazards. In Campbell v City of New York (31 AD3d 594 [2d Dept 2006]), the plaintiff, a police officer assigned to a mounted unit, was injured when his horse bolted and collided with a double-parked car. The Appellate Division, Second Department upheld a jury verdict in favor the plaintiff, rejecting the defendant's arguments that the horse that the defendant furnished to the plaintiff did not constitute a recognized hazard in the workplace, or that the defendant was not on notice that the horse was unfit or presented a hazard over and above those normally associated with horseback riding. The Appellate Division ruled, "This evidence in the plaintiff's case-in-chief [that the horse bolted on three prior occasions when unprovoked] sufficed to lead a rational jury to find that the defendant failed to furnish the plaintiff employment that was free from recognized hazards, and that, by this failure the defendant violated Labor Law § 27—a(3)(a)(1)." (Campbell, 31 AD3d [*9]at 595.) Therefore, this Court rejects defendant's argument that Labor Law § 27-a (3) (a) (1) applies only to premises hazards.

Rather, to ascertain what is a "recognized hazard," the Court must be guided by OSHA standards, because, as discussed previously, "[i]n implementing standards for PESHA [Labor Law § 27-a], New York has adopted OSHA's workplace safety standards." (Williams, 2 NY3d at 367; Capers v Giuliani, 253 AD2d 630, 632 [1st Dept 1998].)

As the City indicates, much of Labor Law § 27-a (3) (a) (1) tracks exactly the "general duty clause" of OSHA (29 USC § 651 et seq.). 29 USC § 654 states, in pertinent part, "(a) Each employer— (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

"This section is intended as a catchall provision to cover dangerous conditions of employment not specifically covered by existing health and safety standards promulgated by the Secretary of Labor under the Act." (Pratt & Whitney Aircraft, Div. of United Technologies Corp. v Secretary of Labor, 649 F2d 96, 98 [2d Cir 1981].) Looking at the legislative history of OSHA's general duty clause, the Second Circuit stated, "The term recognized hazard' is intended to cover dangerous conditions that can be detected by the human senses and are generally known as hazardous.A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is recognized' is a matter for objective determination; it does not depend on whether the particular employer is aware of it."

(Id. at 100.) Therefore, like OSHA, Labor Law § 27-a's "general duty clause" should also be construed as "a catchall provision to cover dangerous conditions of employment not specifically covered by existing health and safety standards." (Id. at 98.) Put differently, a hazard covered under existing health and safety standards cannot be considered a "recognized hazard" under Labor Law § 27-a (3) (a) (1).

Here, an issue arises as to whether any existing health and safety standards apply. Plaintiff's bill of particulars specifically alleged, in addition to Labor Law § 27-a, Section 27-381 of the Administrative Code of the City of New York. (Colt Affirm., Ex D [Verified Bill of Particulars] ¶ 29.) Administrative Code § 27-381 [*10]states: "Corridors and exits shall be provided with artificial lighting facilities, except as otherwise permitted by the provisions of subchapter twelve of this chapter, in accordance with the following:(a) Illumination of at least two foot candles measured at the floor level shall be maintained continuously, during occupancy, in exits and their access facilities for their full length, at changes in direction in and intersections of corridors, balconies, exit passageways, stairs, ramps, escalators, bridges, tunnels, landings, and platforms, and as provided in subchapter eight of this chapter for places of assembly, except that this requirement shall not apply to dwelling units.(b) In buildings classified in occupancy groups B-1 and B-2, exit lighting need only be maintained when a section of floor is occupied.(c) Illumination shall be so arranged that the failure of any one light shall not leave any area in darkness.(d) Phosphorescent materials shall not be used as a method of providing illumination, nor shall battery operated electric lights or portable lamps or lanterns be used as primary sources of lighting.(e) (1) Buildings and existing buildings containing an F-4 place of assembly with an occupant load of three hundred or more persons shall install emergency lighting in each vertical exit serving the floor on which the place of assembly is located so as to provide a continuously lighted passage to the exterior of the building. Such lighting shall be connected to an emergency power source or to storage battery equipment meeting the requirements of the commissioner.(2) Existing buildings required to comply with this subdivision shall install the emergency lighting on or before April first, nineteen hundred eighty-seven."

Furthermore, the Court is aware of OSHA regulations (adopted as PESHA regulations) that might apply to this case. OSHA regulations require that [*11] "(2) Each exit must be clearly visible and marked by a sign reading Exit.' . . .(4) If the direction of travel to the exit or exit discharge is not immediately apparent, signs must be posted along the exit access indicating the direction of travel to the nearest exit and exit discharge. Additionally, the line-of-sight to an exit sign must clearly be visible at all times.(5) Each doorway or passage along an exit access that could be mistaken for an exit must be marked Not an Exit' or similar designation, or be identified by a sign indicating its actual use (e.g., closet)."

(29 CFR 1910.37 [b] [2], [4], [5].) The Commissioner of Labor of the State of New York has adopted these OSHA standards as PESHA standards. (12 NYCRR 800.3.)[FN7]If Administrative Code § 27-381 and the PESHA standards are applicable to this case, then Labor Law § 27-a (3) (a) (1) would not apply. As discussed above, Labor Law § 27-a (3) (a) (1) should not be construed, like 29 USC 654 (a) (1), to cover existing health and safety standards.

In the Court's view, more information is needed about the area where plaintiff was injured to determine whether the regulations would be applicable, and the parties have not had the opportunity to brief the issue. Administrative Code § 27-381 is part of the New York City Building Code. However, "a structure wholly contained within a subway station and is inseparable from the function of that station" is not subject to the NYC Building Code. (See Garcia v New York City Tr. Auth., 63 AD3d 1100, 1101 [2d Dept 2009]; but see Huerta v New York City Tr. Auth., 290 AD2d 33, 41 [1st Dept 2001] [a subway or structure appurtenant to a subway is exempt from the NYC Building Code, not an escalator leading from the subway station].)

Even if neither Administrative Code § 27-381 nor the PESHA regulations apply to this case, the fact that they were enacted lends support for the proposition that the lack of markings on doorways to identify exits and doorways that could be mistaken for exits, as well as inadequate lighting, should be the kind of recognized [*12]hazards that the Legislature intended Labor Law § 27-a (3) (a) (1) to cover.

Given these unresolved issues, the Court cannot say that either the lack of markings on doorways to identify exits and doorways that could be mistaken for exits, or the allegedly inadequate lighting were, as a matter of law, not "recognized hazards" covered under Labor Law § 27-a (3) (a) (1).

C.

That is not to say that Labor Law § 27-a (3) (a) (1) is applicable to the facts here. Although plaintiff was injured while leaving an area where a training exercise was conducted, the parties have not addressed whether this area was a "place of employment" covered under the statute. On the one hand, the City was an out-of-possession owner, not responsible for operating or maintaining the subway tunnel; on the other hand, the City chose to use the area for a training exercise for its employees, presumably with the knowledge and cooperation of the New York City Transit Authority. Although one might argue that the area was a "place of employment" because plaintiff was sent to the area for work, such an interpretation, if too broadly construed, could render the entire City of New York as the "place of employment" for the NYPD. Such reasoning is problematic, for any place where a police officer might be deployed might be considered a "place of employment" covered under Labor Law § 27-a (3) (a) (1), even though the City, as employer, might have little or no control over the area. Such an interpretation could render the City of New York a virtual insurer of all property conditions anywhere in the City of New York where a police officer could be deployed. However, it may be that, where the NYPD deploys a police officer for training, the principle might well be different, particularly if the place chosen for a training exercise was an uncompleted subway or structure, with obvious and concealed hazards, known and unknown. Because these issues were not raised in the City's motion, the Court may not pass on these questions.

D.

As for the City's contention that "plaintiff caused his own injury not the door itself" (Reply Affirm. ¶ 39), "the principles of comparative negligence are inapplicable to actions commenced pursuant to General Municipal Law § 205—e." (Alexander v City of New York, 82 AD3d 1022, 1024 [2d Dept 2011]; Aldrich v Sampier, 2 AD3d 1101, 1104 [3d Dept 2003].) The Appellate Division, First Department has stated, "General Municipal Law § 205-e remains a strict liability statute." (O'Connor v City of New York, 280 AD2d 309, 309 [1st Dept 2001].)

If a statute imposes so-called "strict (or absolute) liability," then "it is conceptually impossible for a statutory violation (which serves as [*13]a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it."

(Blake v Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 290 [2003] [construing Labor Law § 240 (1) ].) Thus, if plaintiff establishes that Labor Law § 27-a (3) (a) (1) applies in this situation, that the statute was violated, and if plaintiff meets the other elements to recover under General Municipal Law § 205-e, then plaintiff cannot be considered the sole proximate cause of his injuries.

Finally, the City contends that plaintiff cannot prove that the door itself was a direct or indirect cause of the accident. However, for the reasons already discussed above, the City has not demonstrated that the causation element of a cause of action under General Municipal Law § 205-e was lacking as a matter of law.

Therefore, summary judgment dismissing the second cause of action is denied.

III.

The branch of the City's motion for summary judgment in its favor against third-party defendant New York City Transit Authority, for contractual indemnification pursuant to Section 6.8 of the 1953 lease, is granted without opposition as to liability only.

CONCLUSION

Accordingly, it is hereby

ORDERED that defendant's motion for summary judgment is granted in part, and the first cause of action is dismissed; and it is further

ORDERED that defendant's motion for summary judgment is granted to the extent that third-party plaintiffs are granted summary judgment as to liability only against third-party defendant New York City Transit Authority, and defendant's motion is otherwise denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: June 15, 2012

New York, New York Footnotes

Footnote 1: It appears that the tunnel is part of the uncompleted Second Avenue subway.

Footnote 2: It would appear that plaintiff retired on accidental disability retirement, because plaintiff testified at his deposition that the monthly pension he received was "75 percent of your last year." (Wozniak EBT, at 9.)

Footnote 3: It is beyond dispute that construction of the Second Avenue subway first began long after execution of the 1953 lease. However, Section 2.8 of the 1953 lease states, "The Authority may use and occupy real property (in addition to that transferred pursuant to Sections 2.1 and 2.2 of this Article II) now or thereafter owned or leased by the City on such terms as may, from time to time, be mutually agreed upon by the City and Authority." (Colt Affirm., Ex I, at 6.)

Footnote 4: New York City Charter § 2903 (b) states, in pertinent part:

"The commissioner [of the New York City Department of Transportation] shall have charge and control of the following functions relating to the construction, maintenance and repair of public roads, streets, highways, parkways, bridges and tunnels: . . .



(2) designing, constructing and repairing of public roads, streets, highways and parkways . . . ."

The Court of Appeals ruled that

"City Charter § 2903(b)(2) places the ultimate duty to direct or effect repairs squarely on the City. Since these provisions are part of a well-developed body of law and impose a clear legal duty on the City to take appropriate steps to keep the sidewalks in safe repair, we conclude that the Appellate Division properly reinstated Cosgriff's claim against the City under General Municipal Law § 205—e."

(Gonzalez, 93 NY2d at 553.)

Footnote 5: Multiple Dwelling Law § 78 (1) states, in pertinent part, "Every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair."

Footnote 6: As discussed above, the City of New York originally argued that Labor Law § 27—a (3) (a) (1), the "general duty" clause, was not a proper predicate under section 205—e, but waived this argument on appeal. (Williams, 2 NY3d at 365 n 3.)

Footnote 7: "Sections 1910.34 through 1910.39 apply to workplaces in general industry except mobile workplaces such as vehicles or vessels." (29 CFR 1910.34 [a].) The Commissioner of Labor of the State of New York has adopted, as the occupational safety and health standards for the protection of the safety and health of public employees, Part 1910—General Industry Standards (revised as of July 1, 1988) of title 29 of the Code of Federal Regulations. (12 NYCRR 800.3.)