Nocenzo Cusumano v. City of New York
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 161
Nocenzo Cusumano, et al.,
Respondents,
v.
City of New York,
Appellant.
Elizabeth S. Natrella, for appellant.
Michael P. Eisenman, for respondents.
PIGOTT, J.:
On December 22, 1999, plaintiff Nocenzu Cusumano, a
firefighter in the New York City Fire Department attending a
first responders training session, fell down a flight of stairs
that ran from the first floor to the basement of a building owned
by defendant City of New York.
Plaintiff commenced this action
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No. 161
against the City pursuant to General Municipal Law § 205-a,
asserting a statutory cause of action for firefighters who
sustain a line of duty injury "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 . . .
city governments" (General Municipal Law § 205-a [1]).
To
recover under that section, however, a firefighter "must
demonstrate injury resulting from negligent noncompliance with a
requirement found in a well-developed body of law and regulation
that imposes clear duties" (Williams v City of New York, 2 NY3d
352, 364 [2004] [discussing General Municipal Law § 205-e, the
sister provision of section 205-a] [internal quotations and
citations omitted]).
Plaintiff contended at the liability trial that he
slipped on debris at the top of the stairs and, due to a poorly
constructed handrail, he was unable to grasp the handrail to
prevent his fall.
He relied on three provisions of the
Administrative Code of the City of New York as predicates for his
section 205-a claim, namely, sections 27-127, 27-128 and 27-375
(f).
The first two are general provisions that require "[a]ll
buildings and all parts thereof . . . be maintained in a safe
condition," that "[a]ll service equipment . . . devices and
safeguards that are required in a building . . . be maintained in
good working order" and that "[t]he owner shall be responsible at
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No. 161
all times for the safe maintenance of the building and its
facilities".1
Section 27-375 (f), entitled "Interior stairs,"
mandates, among other things, that interior stair "[h]andrails
shall provide a finger clearance of one and one-half inches".
Two experts testified for the plaintiff that the
handrail violated section 27-375 (f) and was therefore unsafe.
After the parties rested, the City argued at the charge
conference that section 27-375 (f) was inapplicable because the
stairs constituted "access stairs" pursuant to Administrative
Code section 27-232, as opposed to "interior stairs" which must
provide egress to the outside.
Supreme Court held as a matter of
law that the stairs constituted "interior stairs" and prohibited
the City from arguing the inapplicability of section 27-375(f)
during summation.
Plaintiff's counsel, on the other hand, argued
to the jury that the City violated section 27-375 (f)'s height
and clearance requirements, and Supreme Court issued a jury
charge relative to sections 27-127, 27-128 and 27-375 (f).
In response to separate interrogatories, the jury found
that the City violated Administrative Code §§ 27-127 and 27-375
(f); the court did not submit an interrogatory relative to
section 27-128.
Following a separate damages trial, the City
moved to set aside the verdict.
As to the liability portion of
the motion, the City reiterated its argument that section 27-375
1
Both Administrative Code § 27-127 and § 27-128 were
repealed effective July 1, 2008 and replaced by § 28-301.1.
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No. 161
(f) was inapplicable because the stairs at issue constituted
"access stairs," not "interior stairs."
It further argued that
the jury's finding of liability under section 27-127 was
unsustainable because the evidentiary basis for the jury's
finding was the City's non-compliance with the inapplicable
section 27-375 (f).
Supreme Court denied the motion, holding
that the City should have pleaded as an "affirmative defense" the
inapplicability of section 27-375 (f).
The Appellate Division, with one justice dissenting,
modified the jury's damages award to the extent of ordering
plaintiff to stipulate to a reduction thereof or face a new trial
on that issue (63 AD3d 5, 12 [2d Dept 2009]).
It unanimously
held, however, that section 27-375 (f) did not apply to the
underlying facts because the stairs did not constitute "interior
stairs" as defined by the Administrative Code, and that Supreme
Court improperly shifted the burden to the City of demonstrating
the inapplicability of section 27-375 (f)(id. at 8, 14).
However, the majority and the dissent parted company as to
whether plaintiff presented sufficient evidence independent of
the section 27-375 (f) violation to establish that the City
violated sections 27-127 and 27-128, with the majority concluding
that he had (see id. at 9-10), and the dissent arguing that those
sections did not provide a sufficient predicate for liability
under General Municipal Law § 205-a (see id. at 17).
The Appellate Division properly concluded that section
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No. 161
That code provision applies to
"interior stairs," which are defined as "stair[s] within a
building, that serve[ ] as a required exit" (Administrative Code
§ 27-232).
By all accounts, the stairs from where plaintiff fell
did not serve as an "exit" as defined by the Administrative Code
(see id.), but rather as a means of walking from the first floor
to the basement.
Therefore, Supreme Court erred in denying the
City's motion to dismiss the section 205-a claim to the extent it
was premised on the City's alleged violation of section 27-375
(f).
The effects of this error are not limited to the claim
based on that provision, however, because it cannot be assumed
that the jury viewed plaintiffs' experts' handrail testimony in a
vacuum.
Both experts testified that the handrail clearance
requirements were governed by section 27-375 (f) and that the
City violated those requirements.
Further conflating the
distinction among the Administrative Code sections was testimony
that the City violated sections 27-127 and 27-128 because it
violated 27-375(f).
Supreme Court's erroneous submission of
section 27-375 (f) to the jury, coupled with the expert
testimony, renders it impossible to discern the basis of the
jury's verdict.
We decline the City's invitation to address the issue
of whether sections 27-127 and 27-128 form a sufficient
independent predicate to support a General Municipal Law § 205-a
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No. 161
There is no record evidence that the City contested
plaintiff's argument that those sections provided an independent
predicate, as the record indicates that the City objected to the
applicability of those sections only to the extent that they were
interwoven with section 27-375 (f).
Accordingly, the order of the Appellate Division should
be reversed, with costs, and a new trial ordered.
The certified
question should not be answered upon the ground that it is
unnecessary.
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Cusumano v City of New York
No. 161
LIPPMAN, Chief Judge (concurring) :
I agree with the majority that the trial was tainted by
testimony regarding New York City Administrative Code § 27-375,
and therefore, a new trial is necessary to determine whether
plaintiff is entitled to recovery under General Municipal Law §
205-a (Section 205-a). Nonetheless, I disagree with the
assertion that defendant-appellant City of New York did not
preserve the argument that New York City Administrative Code §
27-127 (Section 27-127) is an insufficient independent predicate
for Section 205-a liability. The argument was made at the charge
conference of the liability trial and again on the motion to set
aside the verdict. Accordingly, I believe we are obliged to reach
this question on the merits.
For a claim brought under General Municipal Law § 205-a
to survive, a plaintiff must demonstrate a line-of-duty injury,
which "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"
(General Municipal Law § 205-a [emphasis added]). Section 205-a
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No. 161
liability therefore does not stand alone but must be predicated
on a violation of a separate legal requirement.
The language "directly or indirectly" in Section 205-a
has been accorded broad application by the courts, "in light of
the clear legislative intent to offer firefighters greater
protections" (Giuffrida v Citibank Corp., 100 NY2d 72, 80
[2003]). Still, we have established some clear limits on the
possible predicates for Section 205-a recovery. As we explained
in Williams v City of New York (2 NY3d 352, 364 [2004]):
"[A]s a prerequisite to recovery, a [plaintiff] 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
... teaches us that we should apply this provision
expansively so as to favor recovery ... whenever
possible"[emphasis added, internal quotation marks and
citations omitted]).1
At issue here is whether Section 27-127 of the
Administrative Code is part of a sufficiently "well-developed
body of law" that imposes clear duties on a building owner, such
that non-compliance with this code section may be the basis for
Section 205-a recovery. Section 27-127 provides:
"All buildings and all parts thereof shall be
maintained in a safe condition. All service equipment,
means of egress, devices, and safeguards that are
required in a building by the provisions of this code
or other applicable laws or regulations, or that were
required by law when the building was erected, altered,
1
Williams involved General Municipal Law Section 205-e -the counterpart to Section 205-a that applies to police officers.
The two statutes have been interpreted interchangeably.
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No. 161
or repaired, shall be maintained in good working
order."
In concluding that Section 27-127 is a proper statutory
predicate for plaintiff's Section 205-a recovery here, the Second
Department properly relied on ample Appellate Division case law
(see Terranova v New York City Tr. Auth., 49 AD3d 10, 17 [2d Dept
2007] lv denied 11 NY3d 708 [2008]; see also Pirraglia v CCC
Realty NY Corp., 35 AD3d 234, 235 [1st Dept 2006]; Lynch v City
of New York, 14 AD3d 347, 348-349 [1st Dept 2005]); Kelly v City
of New York, 6 AD3d 188 [1st Dept 2004]). Further, although this
Court has not had a case granting 205-a recovery through Section
27-127, the writings in some of our foundational 205-a and 205-e
cases assume that such recovery is possible (see Giuffrida, 100
NY2d at 80 n 4; see also Williams, 2 NY3d at 368 [rejecting
plaintiff's General Municipal Law 205-e recovery predicated on
Section 27-127 because plaintiff did not allege concretely that
the building was maintained in an unsafe manner, not because 27127 was an insufficient predicate for recovery]).
Moreover, we have stated before that the series of
legislative amendments in response to narrow Appellate Division
decisions have led us to "apply this provision [i.e., section
205-a] expansively so as to favor recovery by [police officers
and firefighters] whenever possible" (Williams, 2 NY3d at 364).
The arguments against basing Section 205-a recovery on a Section
27-127 violation ignore the legislative intent of broad
protection of firefighters and also our statement in Giuffrida
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No. 161
that "a plaintiff need only establish a 'practical or reasonable
connection' between the statutory or regulatory violation and the
claimed injury" (Giuffrida, 100 NY2d at 81, quoting Mullen v
Zoebe, Inc., 86 NY2d 135, 140 [1995]).
Still, the Appellate Division dissent insists that
Section 27-127 does not impose clear duties or particular
mandates that are parts of well-developed bodies of law and
regulation, simply because the "safe maintenance" language of 27127 does not specifically address handrails or finger clearance
in stairwells. It is not contested that a violation of Section
27-127 is usually found where a "specific structural or design
defect" exists in the building (see Beck v Woodward Affiliates,
226 AD2d 328, 330 [2d Dept 1996]; see also Guzman v Haven Plaza
Hous. Dev. Fund, 69 NY2d 559, 566 [1987] [property owner had
"both a general responsibility for safe maintenance of the
building and its facilities and specific obligations pertaining
to minimum handrail clearance..."]).
However, no additional statute is necessary to permit a
conclusion in the present case that "two pieces of wood nailed to
each other and nailed to the wall" (63 AD3d 5, 10 [2d Dept 2009]
[internal quotation marks omitted]), passing for a handrail,
constitutes a specific design defect. Instead, a violation of
Section 27-127 may be proven to a jury with evidence such as Fire
Code specifications, architectural standards, and other
"industry-wide standard[s] or accepted practices in the field"
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No. 161
(Burke v Canyon Road Rest., 60 AD3d 558, 559 [1st Dept 2009];
see also Jones v City of New York, 32 AD3d 706, 707-708 [1st Dept
2006] [requiring evidence of a "particular professional or
industry standard" to substantiate assertions about the alleged
safety practice of anchoring garbage receptacles to sidewalks]).
If this Court were to accept the assertion that
plaintiff could not recover in the absence of a statute
specifically concerned with the space between a handrail and a
wall, the purpose of Section 27-127 would be eviscerated. As the
Second Department perceptively notes, if this view of Section 27127 were to prevail, the code section would be "render[ed] ...
inapplicable to all but the most commonplace conditions" (63 AD3d
at 10). A trial court would be unable to rule on the existence of
a hazardous condition that any casual observer could discern and
unanimous expert testimony could confirm, unless an additional
statute dictated the precise geometric dimensions of all features
of a safe stairwell.
In conclusion, a rejection of Section 27-127 as a
predicate for plaintiff firefighter's recovery is at odds with
the Legislature's intent in the revision of Section 205-a: to
expand the avenues of recovery for injuries in the line of duty.
I would therefore confirm that 27-127 may indeed constitute a
proper, independent predicate for 205-a recovery.
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No. 161
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Order reversed, with costs, and a new trial ordered. Certified
question not answered upon the ground that it is unnecessary.
Opinion by Judge Pigott. Judges Graffeo, Read, Smith and Jones
concur. Chief Judge Lippman concurs in result in an opinion in
which Judge Ciparick concurs.
Decided October 14, 2010
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