Borst v Lower Manhattan Dev. Corp.

[*1] Borst v Lower Manhattan Dev. Corp. 2016 NY Slip Op 51233(U) Decided on August 24, 2016 Supreme Court, New York County Kotler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2016
Supreme Court, New York County

Michael Borst et al.

against

Lower Manhattan Development Corporation, et al.



VINCENT MASSA

against

LOWER MANHATTAN DEVELOPMENT CORPORATION, et al.



105375/08
Lynn R. Kotler, J.

The following papers numbered 1 to 7 (105375/08) and I to VIII (100115/09) were read on this motion for summary judgment

Notice of Motion/Petition/O.S.C.—Affidavits—Exhibits No(s). 1, I

Notice of Cross-Motion/Answering Affidavits—Exhibits No(s). 2, 3, 4, 5, II, III, IV, V

Replying Affidavits No(s). 6, 7, VI, VII, VIII

These two consolidated actions are brought by firefighters who sustained injuries while fighting a fire on August 18, 2007 at the Deutsche Bank building (sometimes the "building") located at 130 Liberty Street in Manhattan. In that fire, over a hundred fire fighters sustained injuries and Firefighters Robert Beddia and Joseph Graffagnino lost their lives. Defendants The Lower Manhattan Development Corporation and The Lower Manhattan Construction Command Center (individually "LMDC" and "LMCCC", respectively, and collectively "LMC") owned the building. At the time of the fire, the building was being decontaminated and demolished (the "Project"). Also at that time, Defendants Bovis Lend Lease LMB, Inc. and Bovis Lend Lease, Inc. (collectively "Bovis") were the general contractor for the Project and defendant The John Galt Corporation ("Galt") was a subcontractor which performed abatement and deconstruction work.

In action bearing Index Number 105375/08 (Action No.1), the plaintiffs are Firefighters Michael Borst, Sean McBrien, Francis McCutchen and Steve Olsen and their wives Sharon Borst, Diane McBrien, Maryellen McCutchen and Cathy Olsen, respectively. Bovis has settled with all plaintiffs in this action except for the Olsens. Bovis now moves for summary judgment dismissing the Olsens' claims for common-law negligence, public and private nuisance, GML § 205-a and punitive damages, as well as for summary judgment dismissing all cross-claims. Plaintiffs oppose the motion. LMC partially opposes the motion and cross-moves for summary judgment in its favor dismissing the Olsens' claims, as well as for summary judgment as to LMC's contractual indemnity cross-claim against Bovis and dismissing all cross-claims against LMC. Bovis partially opposes the cross-[*2]motion. None of the other remaining parties have taken a position with respect to the motion or cross-motion.

In action bearing Index Number 100115/09 (Action #2), the sole plaintiff is retired Lieutenant Vincent Massa. In this action, Bovis moves for summary judgment dismissing plaintiff's claims for common-law negligence, gross negligence, GML § 205-a and punitive damages, as well as for summary judgment dismissing all cross-claims. Mr. Massa opposes that motion as does defendants Safeway Environmental Corp. and Regional Scaffolding & Hoisting Co., Inc. (collectively "Safeway/Regional"). LMC also partially opposes this motion and cross-moves for summary judgment in its favor dismissing Mr. Massa's claims, as well as for summary judgment as to LMC's contractual indemnity cross-claim against Bovis and dismissing all cross-claims against LMC. Bovis partially opposes the cross-motion on the grounds that it is late as well as substantive grounds.

Since the motions are interrelated, they are hereby consolidated for the court's consideration and disposition in this single decision/order.

Note of issue was filed in Action #1 on June 27, 2014 and in Action #2 on June 30, 2014. In a stipulation signed by all sides and so-ordered on April 14, 2015, the court extended the parties' time to move for summary judgment through August 31, 2015. Both motions were served August 31, 2015 and both cross-motions were served September 11, 2015. Bovis argues that the cross-motions are untimely and should not be considered by the court. The court will address this argument later in the decision.

Previously, plaintiffs moved for summary judgment as to liability. Plaintiffs' motion was largely based upon a non-prosecution agreement entered into between Bovis and the New York County District Attorney's Office ("DANY") following a criminal investigation into the cause of the fire. In a decision/order dated September 6, 2011, the Hon. Barbara Jaffe denied plaintiffs' motion after finding that the agreement was inadmissible. Justice Jaffe's decision/order was affirmed by the First Department (102 AD3d 519 [2013]).

DANY ultimately prosecuted Bovis' Safety Manager at the Project, Jeffrey Melofchik, Galt and two of Galt's employees. They were charged with manslaughter in the second degree, criminally negligent homicide and reckless endangerment in the second degree. All three individual defendants were acquitted and Galt was found guilty of reckless endangerment, only.

The facts relevant to this motion sequence are largely undisputed and are as follows.

Mr. Olsen

At his deposition, plaintiff Steven Olsen testified as follows. On August 17, 2007, Mr. Olsen worked for the Fire Department of the [*3]City of New York at Ladder Company 1 on at 100 Duane Street, New York, New York. At that point, he had been a fire fighter for over twenty years. On the day of the fire, Mr. Olsen was assigned the position of chauffeur, and was "responsible for getting the rig to and from the scene and also placement of the apparatus and operation of the tower ladder."

At approximately 3:45pm that day, an emergency call came in. Mr. Olsen and his fellow firefighters ("Mr. Olsen's company") responded. Mr. Olsen was assigned to drive a "FAST truck" which "would take all specialized equipment in a stokes basket [containing] anything [the firefighters] could possibly need..." When Mr. Olsen arrived at the Deutsche Bank building, he saw "a heavy fire and smoke coming off the top of the building." Mr. Olsen's company proceeded to the construction hoist which was the only way to get to the fire which was on the 17th floor. They went up to the 15th floor and when they came off they elevator they "ran into a plastic wall" which Mr. Olsen cut. They proceeded to the core of the building, and Mr. Olsen "saw all the companies there that came ahead of [his company] which surprised [him]."

Mr. Olsen's company gave a partner saw to members of Ladder 10 who needed to cut through wood to go up to the 16th floor. Meanwhile, Mr. Olsen's captain, Captain Palacio, told Mr. Olsen's company that they needed to find another way up. Mr. Olsen, Captain Palacio, and another firefighter went up Stairs A and cut more plastic on the ceiling that they ran into. "At that point, smoke started seeping down into the small space we were [i]n."

Mr. Olsen and his company tried to pry a "wooden structure" that was blocking Stairs A at its connection to the 16th floor. After failing to breach the stairwell barrier, Mr. Olsen and Captain Palacio went back down to the 15th floor. Mr. Olsen, Captain Palacio and John Moore from Ladder 10 went to the east side of the building. Mr. Olsen and Mr. Moore "shimmied out on a pipe" to get to scaffolding and proceeded up the scaffold stairs to a floor that they could get back into the building from. They punched a hole through an air vent on the side of the building and "[b]lack smoke under pressure came right out and hit [them] right in [their] faces." Based upon his experience, Mr. Olsen knew that entering the building at this point was "untenable" because he couldn't go in "without a hose line."

Mr. Olsen then heard on the radio "three different urgents from different engine officers calling their MPOs trying to find out why they weren't getting water." Mr. Olsen ran down the scaffold stairs to the 15th floor and shimmied back into the building to tell Captain Palacio that they couldn't get in through the scaffold stairs.

The conditions on the 15th floor were now "bad, they were all blackened down about three-quarters of the way down to the floor..." Captain Palacio then ordered all members of Ladder 1 to get back to the construction hoist. Mr. Olsen testified as follows about what happened next.

A. At that point I tried to get back to the construction hoist. I went out into the room, from the room that that window was in, I went out into like a hallway and it was pitch down to the [*4]floor, I could not see anywhere, could not see.Q. What did you do next?A. At that point the plastic walls started melting right next to me and falling on top of me and I figured I was in a bad spot, I had to get back out, so I went back into the room where the window was.Q. Was there any type of construction debris on the floor?A. You could not see anything at this time.Q. What did you do next?A. I was getting ready to give a MayDay for myself because I was in trouble.Q. What does that mean when you say you will give a MayDay?A. MayDay is when a firefighter is in trouble and can't get to a safe location....Q. What happened when you gave the MayDay?A. I didn't give a MayDay, I could not because there were MayDays being given already by other members.Q. If there are MayDays being given by other members you can't give one yourself?A. Any time there is a MayDay given, there is radio discipline where you wait for that person to be answered because we're all on the same channel. All [you do] is confuse, so you don't report another one.Q. You heard several MayDays and you just waited?A. Right.Q. What happened next?A. My room was getting extremely hot and I had to get out. It was time to go.Q. What did you do?A. I got up into the window and the heat was coming past my shoulders and sucking in between my legs, which is a good indication of a back draft and I jumped from the window right to the scaffolding.Q. How long a jump was that?A. 4 to 6 feet the jump where I landed and I landed on my knees. I was very high up and I didn't want to overshoot it or undershoot it. I only had a small platform to land on and I went on all fours and just grabbed with all my might just to hold on. And I landed hard on my left knee, I landed extremely hard probably at first and I came down hard. Q. What happened after you landed on the scaffold?A. I kind of screamed a little bit when I hurt myself. Johnny Moore had came down from up above and I told Johnny that we had to get below this thing because it is going to blow. That's what he did, we went down the stairs and got below the window.Q. You went down the stairs on the scaffold?A. Correct.

Mr. Olsen and Mr. Moore unsuccessfully tried to get back into the building on the 13th floor. They then saw the tip of a ladder come through the netting by the southeast corner of the building. They walked along the scaffolding towards the ladder and started cutting the netting to get to the ladder. Meanwhile, about five other firefighters came out of the building from the south side and went down the ladder. Mr. Olsen and Mr. Moore were waiting their turn when an officer named Lieutenant Gentilouomo "got stuck" on the ladder after the loop of a rope attached to his belt got caught on the side rail of the ladder. A lot of debris was streaming from above, so Mr. Olsen as well as two other firefighters grabbed Lieutenant Gentilouomo and pulled him off the tip of the ladder back [*5]onto the scaffolding. They then ducked their heads from the scaffolding into the building "because we were getting pelted with everything from the fire, debris, a piece of plywood hit us on the back..."

At this point, Mr. Olsen "was hobbling" and Lieutenant Gentilouomo "was burnt." They both went back to the northeast corner of the scaffolding where the stairs were and eventually descended the stairs. Mr. Olsen and Lieutenant Gentilouomo arrived on the ground and "collapsed." Mr. Olsen eventually limped to the Command Center which was about a ten-minute walk. He told the Captain he hurt his leg and was told to go through decontamination and was put onto an ambulance. Mr. Olsen was taken to the emergency room at St. Vincent's hospital.

In Action #1, Mr. Olsen has asserted the following claims against Bovis and LM" target="_blank">Filannino v. Triborough Bridge and Tunnel Authority, 34 AD3d 280 [1st Dept 2006]). The reasoning behind this rule is that the court may search the record and grant summary judgment to any party without the necessity of a cross-motion. (Id.) Here, while Bovis did move for summary judgment dismissing the cross-claim, the argument in support of that request for relief contrasts sharply with the arguments LMC makes in support of its cross-motion as to the cross-claim. Bovis argues that since it cannot be held liable to plaintiff, there is no basis for liability to any of the co-defendants. Whereas LMC argues that it is entitled to contractual indemnification based upon the contract between LMDC and Bovis which contained an indemnification clause as well as requiring Bovis to name LMDC as an additional insured. Since LMC's arguments go beyond the issues raised by Bovis in its timely motion, LMC's cross-motion for contractual indemnification must be denied.

The balance of the cross-motions must also be denied as untimely, since there can be no dispute that the issues relating to LMC's liability as the property owner to plaintiffs differ from those issues raised by Bovis in support of its motion. Accordingly, the cross-motions are denied in their entirety.

Discussion

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of NewYork, 49 NY2d 557, 562 [1980]). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]).

At the outset, Mr. Olsens' labor law and nuisance claims must be dismissed. First, the Olsens do not oppose that branch of Bovis' motion. Even if they did, these claims are untenable. The labor law claims fail because Mr. Olsen was not a worker at the building within the meaning of the Labor Law (see Mordkofsky v. V.C.V. Development Corp., 76 NY2d 573 [1990]). The private nuisance claim is unavailing because the Olsens have not even alleged that Bovis interfered with their property rights, and the public nuisance claim must be dismissed because Mr. Olsen's' injuries were sustained on private property. Accordingly, Bovis' motion in Action #1 is granted to the extent that it is entitled to summary judgment dismissing Mr. Olsen's labor law, private nuisance and public nuisance claims.

Otherwise, the court finds that Bovis has not established entitlement to summary judgment dismissing plaintiffs' GML § 205-a or negligence claims.

1. The GML § 205-a claims

GML § 205-a provides a cause of action to firefighters and representatives of deceased firefighters who are injured "directly or indirectly as a result of any neglect, omission, willful or culpable negligence" against anyone who fails to comply with any federal, state or local "statutes, ordinances, rules, orders and requirements. This statutory cause of action was enacted in response to the firefighter rule, which bars recovery in common-law negligence claims where the injuries sustained are related to the particular dangers that a firefighter is expected to face (Zanghi v. Niagara Frontier Transp. Com'n, 85 NY2d 423 [1995]).

To establish a prima facie claim under GML § 205—a, plaintiff firefighter must demonstrate the defendant's violation of a statute or ordinance, describe the nature of the injury, and set forth facts from which it may be reasonably inferred that the defendant's negligence directly or indirectly caused the plaintiff's injury (Zvinys v. Richfield Inv. Co., 25 AD3d 358 [1st Dept 2006] citing Zanghi, supra; see also Cusumano v. City of New York, 63 AD3d 5 [2d Dept 2009] rev'd on other grounds 16 NY3d 319 [2010]). Further, the plaintiff must demonstrate that the injury resulted from "negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties" (Cusumano, 15 NY3d 319 [2010] citing Williams v. City of New York, 2 NY3d 352 [2004]). Notice is not an element of a Section 205-a claim. (Id.)

In their complaints and bill of particulars, plaintiffs both allege violations of: [1] various OSHA regulations; the [2] the NYC Admin Code; [3] the NYS Building Code; [4] 3 RCNY §§ 11-01, 37-01, 37-02, 37-03, 37.04; [5] the NYS Fire Code; and [6] NY Public Health Law §§ 1399-n, -o and -s.

Mr. Massa also asserts violations of: [*16][1] NYC Charter § 488; [8] Life Safety Code, NFPA 101; [9] Board of Standards and Appeals Rule § 3-02 and [10] the Coordinated Construction Act.

The court will now examine each violation that plaintiffs claim. Then, the court will consider the issue of whether the violations directly or indirectly caused plaintiffs' injuries.

a. Preliminary Matters

First, plaintiffs claim that Bovis violated certain OSHA regulations. As Bovis correctly points out, a GML § 205-a cause of action premised upon an OSHA violation can only be maintained against a plaintiff's employer (Gallagher v. 109-02 Development, LLC, 137 AD3d 1073 [2d Dept 2016]). Therefore, these claims must be dismissed. Further, the State Building and Fire Codes do not apply to Bovis pursuant to Executive Law § 383 which provides, in pertinent part, "[t]hat, in cities with a population of over one million, the existing building and fire prevention codes shall continue in full force and effect..." Accordingly, plaintiffs' GML § 205-a claims premised upon violations of OSHA regulations, the NYS Building Code and NYS Fire Code are hereby severed and dismissed.

3 RCNY § 11-01 does not apply to Bovis, since it required the FDNY to inspect buildings under demolition every fifteen days. Further, to the extent that plaintiffs have failed to oppose Bovis' motion for summary judgment dismissing the GML § 205-a claims based upon particular statutory violations, the court deems plaintiffs' failure to oppose same as a concession on that point and those claims are dismissed. The court will now focus on the particular statutory violations that plaintiffs oppose dismissal of.

b. Violations Concerning the Standpipe System

Plaintiffs assert a number of violations concerning the standpipe system. Plaintiffs allege that Bovis violated 1 RCNY Chapter 26, Appendix A, which provides in pertinent part as follows:

A. Purpose.This "Manual" outlines the requirements of the site safety programs submitted to the Department of Buildings pursuant to Local Law 45 of 1983, Local Law 61 of 1987 and the rules and regulations relating to the filing of site safety programs, dated September 23, 1986, [*17]as set forth in Subchapter 19 of Chapter 1 of Title 27 of the Administrative (Building) Code. The requirements shall include a schedule of specific duties and responsibilities for the site safety manager and other items that are to be set forth in a site safety program. They are not intended, however, to supersede any requirements of the Building Code, or rules and regulations promulgated by the Buildings Department or any other city, state or federal agency, pertaining to site safety and other construction activity.

The court finds that 1 RCNY Chapter 26, Appendix A, which by its own terms outlines the requirements of a safety plan to be submitted to the DOB, does not create the type of legal duties that plaintiffs argue were violated here. Therefore, this claimed violation is dismissed.

Next, plaintiffs allege violations of Admin Code § 27-930, entitled Existing standpipes requires that siamese connections have red caps on them, and Admin Code § 27-934, entitled Standpipe Systems in structures being erected or demolished. Admin Code § 27-934 provides as follows:

(a) During construction or demolition of any structure for which a standpipe system is required, provision shall me made for the use of such standpipe by the fire department in accordance with the provisions of section 27-1014 of article one of subchapter nineteen and this subchapter.(b) Temporary risers shall be at least four inches in diameter for structures less than four hundred fifty feet high and at least six inches in diameter for structures four hundred fifty feet high or more. There shall be as many risers as will be, or were, required for the permanent system. Each such riser shall be connected to a cross [*18]connection that is supplied through siamese hose connections at the street level, and shall be equipped on each floor with a two and one-half inch hose outlet valve. The installations shall be made so that each riser, cross-connection and branch line can be plugged or capped when work is not being done on the system. The location of the siamese hose connection shall be placarded, kept free from obstruction, and identified by a red light.

Admin Code § 27-1014, Fire Protection, provides:

Fire fighting equipment at the construction site and the conduct of all construction operations affecting fire prevention and fire fighting shall meet the requirements of the fire department.(b) Standpipe systems. Standpipe systems during construction operations shall comply with the following: (1) If in the course of erection or alteration for which a standpipe system will be required the work reaches a height greater than seventy-five feet a permanent or temporary standpipe meeting the requirements of subchapter seventeen of this chapter shall be kept in readiness at all times for fire department use. The system shall be a dry system when freezing conditions may be encountered. (2) In structures undergoing demolition which have existing standpipe systems, such systems shall be maintained as dry standpipes [*19]Siamese hose connections shall be kept free from obstruction and shall be marked by a metal sign reading, "Standpipe Siamese Connection" and by a red light at night.

On this record, Bovis has failed to establish as a matter of law that it did not violate Admin Code §§ 27-930, 27-934 and 27-1014. Here, there is no dispute that one of the siamese connections did not have a red cap on it. Another siamese connection was hidden behind fencing. In its reply, Bovis argues that plaintiffs "did not produce admissible evidence that the Siamese connections did not meet the requirements of Administrative Code § 27-930", but this argument overlooks the fact that it is Bovis' burden as the proponent of the motion to demonstrate that the siamese connections were properly labeled, capped and accessible to the FDNY. Relatedly, Bovis has necessarily failed to meet its burden by establishing that the siamese hose connections were "placarded, kept free from obstruction, and identified by a red light" in compliance with Admin Code § 27-934 (b).

Further, there is no dispute that there were multiple breaches in the cross-connection pipes, and therefore, the standpipe system cannot reasonably be considered to be in a state of "readiness" on the date of the fire. Bovis cannot demonstrate compliance with the mandate contained in Admin Code § 27-934 to keep the riser connected to a cross connection supplied through siamese hose connections. Nor has Bovis established that it kept the standpipe system in a state of "readiness at all times for fire department use" in compliance with Admin Code § 27-1014.

The court rejects Bovis' argument that it was sufficient that the Stairway A riser was intact. This argument is premised upon the proposition that the standpipe riser, standing alone, qualifies as a standpipe system. Meanwhile, plaintiffs maintain, based upon the testimony of various deponents as well as their experts' affidavits, that the standpipe system is comprised of the siamese connection(s), cross-connection pipes and risers.

Admin Code § 27-232 defines a standpipe system as "[a] system of piping, for firefighting purposes, consisting of connections to one or more sources of water supply and serving one or more hose outlets." Section 27-934 details the minimum requirements for a standpipe system in a building that is being demolished: "[e]ach such riser shall be connected to a cross connection that is supplied through siamese hose connections at the street level, and shall be equipped on each floor with a two and one-half inch hose outlet valve."

The court agrees with plaintiffs that Bovis misinterprets Admin Code § 27-232 and has otherwise failed to demonstrate that the standpipe riser can be considered a standpipe system as a matter of law. "[S]tatutes relating to the same subject matter must be read together and applied harmoniously and consistently" (Alweis v. Evans, 69 NY2d 199 [1987]). When reading Admin Code § 27-232 together with Title [*20]27 of the Administrative Code, Subchapter 17, Articles 2 and 3, a standpipe system is more than simply a standpipe riser. Accordingly, this argument is rejected.

Next, Admin Code § 27-951, entitled Inspections and tests, provides in pertinent part as follows:

(a) Inspections. Every new system and every part of an existing system that is altered, extended, renovated, or repaired, except for ordinary repairs, shall comply with the applicable requirements of this subchapter.(2) Flow Test. The system shall be flow tested to determine that water is available at the top outlet of each riser, the lowest outlet in each riser, and through each Siamese connection. The system shall be flushed to remove all foreign matter from the system. Flow shall be through at least a two and one-half inch hose without nozzle at each one of the above mentioned locations at separate times.(3) Alteration Tests. When alterations, additions, or repairs are made to a standpipe system, the entire system shall be subjected to a hydrostatic test pressure of at least fifty psi at the highest hose outlet, and in addition, a flow test shall be made as stated in paragraph two of this subdivision through the new or altered portion of the system.

Bovis argues that the "evidence demonstrates that Bovis tested and inspected the standpipe as required by the New York City Administrative Code." The court disagrees. While Bovis points to Mr. Melofchik's testimony that he would visually inspect the standpipe system every day, there is no evidence to indicate that a flow or hydrostatic test was performed prior to the date of the fire. The record here shows that the standpipe system was last tested in the Spring of 2006 when Bovis first started work on the Project. Indeed, if Bovis had performed such tests within approximately ten months prior to the fire, it would have learned that the standpipe system was inoperable.

The issue turns on whether the standpipe system was altered, renovated or repaired thereby triggering Bovis' responsibility to conduct testing in compliance with Admin Code § 27-951. The court finds that a triable issue of fact exists on this point. Bovis argues at length that testing wasn't required because DOB inspectors did not require Bovis to pressure test the standpipe each time the standpipe riser had been shortened as a floor was demolished. That argument, however, is a red herring. It remains that Bovis did not test the standpipe and whether Melofchik had a good faith belief that the standpipe system had not been altered cannot be established on this record as a matter of law. On this record, a jury could conclude that Melofchik knew or should have known that the standpipe system had been altered, at least in the basement. There is testimony that Mr. Melofchik was present when the 42-foot segment of standpipe fell to the floor and there is also evidence in the form of plaintiffs' experts' opinion that it was unreasonable for Mr. Melofchik to not know that the standpipe had been breached. If Mr. Melofchik knew or should have known that the standpipe had been breached in the basement, the obligation to conduct a flow test and/or hydrostatic test at pressure was triggered by the plain language of Admin Code § 27-951. Accordingly, the court finds a triable issue of fact as to whether Bovis violated Admin Code § 27-951.

Admin Code §§ 27-127 and 27-128 impose a non-delegable duty upon building owners to maintain their buildings "in a safe condition." Since Bovis did not own the building, these alleged violations must be dismissed (see i.e. Weiss v. City of New York, 16 AD3d 680 [2d Dept 2005]; see also Zvinys v. Richfield Inv. Co., 25 AD3d 358 [1st Dept 2006]).

Accordingly, Bovis' motion is denied as to plaintiffs' GML § 205-a claim premised upon violations of Admin Code §§ 27-930, 27-934, 27-951 and 27-1014. Plaintiffs' GML § 205-a claims premised upon 1 RCNY Ch. 26, App A, Admin Code §§ 27-127 and 27-128 are dismissed.

c. Violations Concerning the Interior Stairways

Plaintiffs assert GML § 205-a claims premised upon violations of Admin Code § 27-356 (inadequate exits for existing structures), § 27-316 (arrangement of exits), § 27-370 (exits free of obstructions) and § 27-375 (interior stair requirements). The court agrees with Bovis that it has established as a matter of law the absence of negligence concerning the issue of whether there was appropriate egress in the subject interior staircases. Here, there is no dispute that the horizontal isolation barriers were built in accordance with NYSDOL Industrial Code Rule 56 and according to the specifications called for in the Implementation Plan with the approval of the DOB, EPA, NYCDEP and NYSDOL. Further, the isolation barriers had an emergency kick out panel. There is no dispute that other than the two interior stairwells, the building had two other means of egress: the exterior hoists at the north and south sides of the building and the exterior scaffold stairs. Indeed, the Mr. Olsen escaped the building via the exterior scaffold stairs.

As Bovis correctly points out, Admin Code § 27-376 allows for exterior stairs in lieu of interior stairs provided that the exterior stairs comply with requirements for interior stairs excepting enclosure On this record, Bovis has demonstrated that it did not negligently violate any of the provisions and in turn, plaintiffs have failed to raise a triable issue of fact on this point. Accordingly, the GML § 205-a claims premised upon violations of Admin Code §§ 27-316, 27-356, 27-370 and 27-375 are hereby severed and dismissed.

Violations Concerning Smoking

Plaintiffs have asserted GML § 205-a claims arising from smoking at the construction site based upon violations of Admin Code § 27-4008 and the NYC Fire Code. Admin Code § 27-4008 provides that "[i]t shall be unlawful to smoke or carry a lighted cigar, cigarette, pipe or match within any room or enclosed place, or in any cellar or basement, or in any part of any premises in which an explosive or highly combustible or flammable material is manufactured, stored or kept for use or sale." Since there is no dispute that there were no explosive or highly combustible materials at the building, Section 27-4008 does not apply here. As for the claimed NYC Fire Code violations, the applicable provisions were not in effect on the date of the fire. Further, plaintiffs did not allege violations of these provisions in either their complaint or bills of particulars. Accordingly, plaintiffs' GML § 205-a claims based upon Admin Code § 27-4008 and the NYC Fire Code are severed and dismissed.

d. Causation

Bovis devotes most of its arguments for summary judgment on plaintiffs' GML § 205-a claims to the issue of whether Bovis negligently violated the subject provisions. Bovis does, however, argue that the FDNY should have followed proper protocol and connected directly to the standpipe riser. This argument assumes that the FDNY knew that standpipe riser was intact and operational and that the only problem was with the cross-connection pipes. Bovis also argues in a footnote that the FDNY should have conducted inspections of the building as required by law and if it had, the inoperable standpipe system would have been discovered. These arguments do not, however, eliminate issues of fact as to whether Bovis' negligent violations of Admin Code §§ 27-930, 27-934, 27-951 and 27-1014 directly or indirectly caused plaintiffs' injuries. Even if Bovis had met its burden, there are sufficient facts on this record from which a reasonable fact finder could conclude that Bovis' violations of the subject provisions directly or indirectly caused both Mr. Olsen and Mr. Massa's injuries.

Accordingly, Bovis' motions for summary judgment dismissing plaintiffs' GML § 205-a claims based upon violations of Admin Code §§ 27-930, 27-934, 27-951 and 27-1014 are denied. Bovis is otherwise entitled to summary judgment dismissing the GML § 205-a claims premised upon all other alleged violations.

[*21]2. Common-law Negligence

Bovis seeks summary judgment dismissing plaintiffs' common-law negligence claims. The elements of common-law negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) a showing that the breach of that duty constituted a proximate cause of the injury (Akins v. Glens Falls City School Dist., 53 NY2d 325 [1981]). Bovis specifically argues that it did not have notice of the alleged defective condition nor did it cause or create the condition. The court finds that Bovis has failed to demonstrate the absence of notice of that it caused or create the defective conditions for the reasons that follow.

At its heart, plaintiffs' claim is simple. Plaintiffs maintain that Bovis was responsible for making sure that the worksite was safe and that there was a working standpipe system in a state of readiness in the building at all times. Plaintiffs contend that Bovis failed to maintain a safe worksite by making egress difficult and by permitting smoking at the worksite. The court has already addressed the issue of egress, and the analysis above is the same here. Bovis has established the absence of a triable issue of fact as to whether the use of the horizontal isolation barriers was a departure from a reasonable standard of care. The design of the horizontal isolation barriers was consistent with DYSDOL Industrial Code Rule 56, was approved by four different regulatory agencies and the barriers themselves included a kick out panel for use in an emergency. The court finds that a fact finder could not reasonably conclude that Bovis was negligent when it installed the horizontal isolation barriers. However, there are sufficient facts here that widespread smoking was permitted on the worksite which constituted an unsafe condition. Further, contrary to Bovis' contention, there is sufficient evidence that smoking caused the fire.

Bovis argues that Fire Marshal Quinci's post-fire investigation was flawed or that his conclusion was not definitive and therefore should not be relied upon. Bovis also argues, based upon Mr. Gottuk's affidavit, "the discard of a cigarette was not the cause of the Fire." Mr. Gottuk's conclusion only highlights a triable issue of fact as to the cause of the fire, which plaintiffs clearly raise through Captain Ressner's conclusions which contradict Mr. Gottuk.

As for condition of the standpipe system, Bovis argues that the evidence shows that it did not have notice of the breaches in the cross-connection pipes. The court disagrees. There is a triable issue of fact as to whether Mr. Melofchik knew or should have known about the missing 42-foot segment of the cross-connection pipe. Further, a reasonable juror could conclude that Bovis should have tested the standpipe system which would have revealed the fact that the standpipe system was inoperable.

Accordingly, the court finds that Bovis has failed to demonstrate entitlement to summary judgment dismissing the common-law negligence claims.

3. Punitive damages/gross negligence

A substantial portion of these motions is devoted to plaintiffs' claims for punitive or exemplary damages. Bovis argues that the Olsen's prayer for relief for punitive damages, and Mr. Massa's claim for gross negligence should be dismissed. There is no separate cause of action for punitive damages in New York (Randi A.J. v. Long Island Surgi-Center, 46 AD3d 74 [2d Dept 2007] quoting Rocanova v. Equitable Life Assur. Socy of U.S., 83 NY2d 603 [2007]). Rather, punitive damages may be awarded where a defendant's conduct, even though unintentional, is "grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others" (Guariglia v. Price Chopper Operating Co., Inc., 38 AD3d 1045 [3d Dept 2007] citing Home Ins. Co. v. American Home Prods. Corp., 75 NY2d 196, [1990]). The purpose of punitive damages goes beyond simply punishing the perpetrator for the morally culpable act committed (id. at 203). Indeed, punitive damages deters such grossly negligent or reckless conduct as a matter of public policy (Randi A.J., supra).

Meanwhile, gross negligence is a means to obtain punitive damages, and is defined as more than the failure to exercise reasonable care. Gross negligence is "the failure to use even slight care, or conduct that is so careless as to show complete disregard for the rights and safety of others (PJI 2:10A; see also Sommer v. Federal Signal Corp., 79 NY2d 540 [1992]).

Bovis argues that its conduct could not reasonably be seen as willful, malicious or criminal, nor was its conduct directed at the general public. This court disagrees. With regards to Bovis' failure to maintain the standpipe system or enforce a no-smoking policy at the worksite, the court finds that a reasonable fact finder could find that this conduct rises to the level of gross negligence and merits an award of punitive damages. Further, Bovis' disregard of general fire safety cannot reasonably be viewed as directed at only a small subset of private citizens, where a building fire in the middle of Manhattan could easily cause harm to the public, either directly, or indirectly, as was the case here, when the subject multiple-alarm fire blazed for many hours, over a hundred fire fighters were injured, and two were killed. Further, the court finds that an award of punitive damages here would serve public policy and deter the kind of conduct that plaintiffs' claim occurred.

Bovis further argues that even if Mr. Melofchik's conduct was grossly negligent, that Bovis should not be held liable for punitive damages. This argument fails because there is a triable issue of fact as to whether Bovis provided sufficient safeguards to ensure that the underlying conduct did not take place. Mr. Melofchik testified at his deposition that he was not provided with any training or other information concerning the identification of a standpipe. That Bovis' senior management did not ratify Mr. Melofchik's conduct is of no moment, since affirmative acts are not necessary to establish gross negligence. Accordingly, Bovis' motion to dismiss the Olsens' request for punitive damages and Mr. Massa's claim for gross negligence is denied.

4. Cross-claims

Since Bovis has failed to demonstrate entitlement to summary judgment dismissing plaintiffs' claims, its argument that the cross-claims against it should be dismissed fails.

CONCLUSION

In accordance herewith, it is hereby:

ORDERED that Bovis' motion for summary judgment in Action #1 is granted only to the following extent:

[1] plaintiff Steve Olsen's § 205-a claims premised upon all violations, except violations of Admin Code §§ 27-930, 27-934, 27-951 and 27-1014, are severed and dismissed; and

[2] plaintiffs' labor law, public nuisance and private nuisance claims are severed and dismissed; and it is further

ORDERED that Bovis' motion in Action #1 is otherwise denied; and it is further

ORDERED that Bovis' motion in Action #2 is granted only to the extent that plaintiff Vincent Massa's GML § 205-a claims premised upon all violations, except violations of Admin Code §§ 27-930, 27-934, 27-951 and 27-1014, are severed and dismissed; and it is further

ORDERED that Bovis' motion in Action #2 is otherwise denied; and it is further

ORDERED that LMC's cross-motions in both Action #1 and Action #2 are denied as untimely.

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly rejected and this constitutes the decision and order of the court.

Dated: August 24, 2016

New York, New York

So Ordered:

_______________________

Hon. Lynn R. Kotler, J.S.C.