Mulham v City of New York

[*1] Mulham v City of New York 2012 NY Slip Op 51036(U) Decided on May 31, 2012 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 31, 2012
Supreme Court, Richmond County

Donald Mulham, Plaintiff,

against

The City of New York, Defendant.



101754/09

Thomas P. Aliotta, J.

Upon the foregoing papers, defendants motion for summary judgment and dismissal of the complaint is granted.

The within action was commenced to recover damages for personal injuries allegedly sustained by New York City Police Officer Donald Mulham (hereinafter plaintiff ) when, on September 5, 2008 , during the course of his employment, he chased a suspect into a vacant lot in a wooded area of Staten Island. When plaintiff had gone about 50 -100 feet into the lot, he encountered [*2]a five by five [foot]... wooden structure... made of a lot of different things, [including] wood, sticks, fabric, [and] coca cola crates ... . Believing that the suspect was hiding within, plaintiff jumped onto a piece of plywood which appeared to the officer like a platform of some sort to hold the structure . When he landed, however, plaintiff fell through the plywood onto the ground below, allegedly sustaining injuries to his knee and shoulder (see Defendant's Exhibit D , pp 21-25).

In his Notice of Claim dated February 24, 2009 (see Defendant's Exhibit A ), plaintiff asserts causes of action against the City under General Municipal Law § 205-e predicated upon the City's alleged violation of (1) New York City Health Code § 153.19; (2) Administrative Code of the City of New York (hereinafter Administrative Code ) §§ 27-127, 27-128; and (3) Labor Law § 27-a (3)(a) (1), as well as common-law negligence. Plaintiff has since conceded that the cause of action based upon common-law negligence must be dismissed, citing Wadler v City of New York (14 NY3d 192; see General Obligations Law § 11-106 [added L 1996, ch 703; eff October 9, 1996]).

With regard to those cause(s) of action brought pursuant to General Municipal Law § 205-e, a plaintiff-police officer may establish a prima face case by demonstrating that he or she was injured "as a result of [the] neglect, omission, willful or culpable negligence" of the named defendant "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-e [1]). Moreover,"it is not necessary for the plaintiff to prove such [prior] notice as would be required under a common-law theory of negligence" (Lustenring v 98-100 Realty, 1 AD3d 574, 578). Rather, a plaintiff need only establish that "the circumstances surrounding the failure to comply [with one of the above provisions] indicate that it was a result of ,.. neglect, omission, willful or culpable negligence on the defendant's part" (Terranova v New York City Tr. Auth., 49 AD3d 10, 17 [internal quotation marks omitted]).

Here, plaintiff apparently has abandoned those General Municipal Law (hereinafter GML ) causes of action which were predicated on the alleged violation of Administrative Code §§ 27-127 and 27-128. In any event, these Code sections were repealed effective July 1, 2008 and, thus, were no longer in effect at the time of plaintiff's injury. Hence, any such causes of action would be subject to dismissal. [*3]

Nevertheless, plaintiff maintains in a sixth Bill of Particulars, dated January 9, 2012, that he should be permitted to pursue a GML § 205-e cause of action predicated on the alleged violation of Administrative Code § 28-301.1 (added LL 33/2007; eff July 1, 2008) which, it is claimed, replaced the previously cited Code provisions. The Court disagrees. This supplemental Bill of Particulars was not submitted until after defendant moved to dismiss and was obviously tendered in the light thereof. In addition, it was submitted without leave of Court, some two months after the filing of the note of issue. As such, plaintiff's sixth Bill of Particulars should be considered a nullity and the matter included therein need not be addressed (see Miki v 335 Madison Ave., LLC, 93 AD3d 407, affg 30 Misc 3d 1214A [Sup Ct New York Co 2011]; Salgado v Town Sports Intl., 73 AD3d 898, 899).

However, even if this Court were to entertain plaintiff's argument premised upon an alleged violation of Administrative Code § 28-301.1, the pictures submitted by plaintiff depicting the ramshackle pile of debris where the accident allegedly occurred (see Plaintiff's Exhibit B , F ) can hardly be equated with the types of buildings ... and ... structures to which this section of the Administrative Code or any of its alleged predecessors were intended to apply. Neither has plaintiff established that the City had actual or constructive notice of the alleged hazardous condition of the lot in question (see Rabinowitz v City of New York, 286 AD2d 724, 725, [jury verdict in favor of police officer under GML § 205-e based on the City's alleged failure to maintain its parking lot in accordance with the relevant Administrative Code provisions reversed, citing, e.g., plaintiff's failure to prove its actual or constructive notice of the purported hazardous condition], lv denied 98 NY2d 615).

People v. Fox (3 AD3d 577), in which the court was forced to confront the meaning of the term building in the context of a prosecution for arson in the second degree under Penal Law § 150.15, is readily distinguishable on its facts and does not constitute a contrary controlling precedent.

Likewise the Court rejects as actionable plaintiff's claims which are predicated upon an alleged violation of New York City Health Code § 153.19. To the extent relevant, that ordinance provides "[t]he owner, agent, lessee, tenant, occupant or other person who manages or controls a building or lot shall be jointly and severally responsible for keeping the sidewalk, flagging and curbstone abutting the premises free from obstructions and nuisances and for keeping such sidewalk, flagging and curbstone, [*4]the air shafts, areaways, backyards, courts and alleys, or lot clean and free from garbage, refuse, rubbish, litter, or other offensive matter or accumulation of water". This section if it applied at all, could only be in the context of the City's alleged failure to control the proper disposal of, e.g., refuse, on its vacant lot, and regulations affecting mere sanitation have never been held to be the type of governmental mandate whose violation would support a cause of action under GML § 205-e.

Although, as written, GML § 205-e (1) seemingly creates a statutory cause of action which appears limitless purporting to impose liability whenever an injury results from the violation of any of the rules, orders and requirements of ... any and all of [the] departments, divisions and bureaus of any governmental entity, "it is well settled that the statute cannot reasonably be applied literally in accordance with [this] broad language. Rather, as a prerequisite to recovery, a police officer must [be able to] demonstrate [the occurrence of an] injury resulting from [the] negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties" (Galapo v City of New York, 95 NY2d 568, 574 [internal citations and quotation marks omitted]); see Desmond v City of New York, 88 NY2d 455, 463-464 [as an ameliorative provision, GML § 205-e must be construed and applied in light of [its] specific history and purpose as well as [its] language ]). In this regard, it is pertinent to note that the cases sustaining a recovery under § 205-e are virtually unanimous in their reliance upon the violation of statutes relating to some form of safety consideration (see e.g., Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423), and not, as here, a sanitation provision (see Galapo v City of New York, 95 NY2d at 576, [holding that GML § 205-e was not intended to allow suits ... for breaches of any and all governmental pronouncements of whatever type', citing Desmond v City of New York, 88 NY2d at 464]; Rabinowitz v City of New York, 286 AD2d at 725 [Administrative Code § 16-118, entitled Littering prohibited , determined to be an insufficient predicate for recovery under GML § 205-e]; see also Shepard v Werwaiss, 947 FSupp 71). This last case is particularly instructive, for in it, the Federal District Court for the Eastern District of New York ruled that a violation of § 153.01 of New York City's Health Code (also entitled Littering prohibited ) did not constitute a proper predicate for a GML § 205-e claim, and in a footnote at page 75 (n 6), specifically stated that a re-consideration of plaintiff's claim based upon an alleged violation of § 153.19 of the Health Code (the [*5]same section on which plaintiff purports to rely) would not alter the result.

Finally, as for defendant's alleged violation of Labor Law § 27-a, it is familiar law that this section, enacted expressly to "provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA" (Hartnett v. New York City Tr. Auth., 86 NY2d 438, 442), requires a public sector employer to provide its employees with workplaces that are free from recognized hazards likely to cause death or serious physical injury and which will reasonably and adequately protect the[] lives, safety and health of its employees" (id. at 443). Hence, there can be no doubt that a violation of Labor Law § 27-a is legally sufficient to serve as the basis for a claim by a police officer under GML § 205-e (see generally Fisher v. City of New York, 48 AD3d 303 [construing the nearly identical section of the GML (§ 205-a) which applies to firefighters injured in the line of duty]). However, even the most expansive interpretation consistent with the over-all goals of GML § 205-e and Labor Law § 27-a would not equate plaintiff's injury in a vacant lot littered with debris a workplace injury caused by the type of "recognized hazard contemplated by Labor Law § 27-a (3) (see Norman v. City of New York, 60 AD3d 830, 832; see also Sciangula v City of New York, 250 AD2d 833).

Accordingly, it is hereby

ORDERED that defendant's motion for summary judgment is granted and the complaint dismissed; and it is further

ORDERED that the Clerk enter judgment in accordance herewith.

E N T E R,

Dated: May 31, 2012

_/s/____________________________

Hon. Thomas P. Aliotta

J.S.C.