Cusumano v. City of New York

Chief Judge Lippman (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. 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 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 [1] [emphasis added]). Section 205-a 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 (1) 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 *326section 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).*

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 noncompliance 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, 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 section 205-a recovery through section 27-127, the writings in some of our foundational section 205-a and section 205-e cases assume that such recovery is possible (see Giuffrida, 100 NY2d at 79 n 4; see also Williams, 2 NY3d at 368 [rejecting plaintiffs General Municipal Law § 205-e recovery predicated on section 27-127 because plaintiff did not allege concretely that the building was *327maintained in an unsafe manner, not because section 27-127 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 [firefighters] whenever possible” (Williams, 2 NY3d at 364 [internal quotation marks omitted]). 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 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 section 27-127 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 Co., 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” (citations omitted)]).

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 proved to a jury with evidence such as Fire Code specifications, architectural standards, and other “industry-wide standards or accepted practices in the field” (Burke v Canyon Rd. Rest., 60 AD3d 558, 559 [1st Dept 2009]; see also Jones v City of New York, 32 AD3d 706, 706-707 [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 *328with 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 27-127 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 section 27-127 may indeed constitute a proper, independent predicate for section 205-a recovery.

Judges Graffeo, Read, Smith and Jones concur with Judge Pigott; Chief Judge Lippman concurs in result in a separate opinion in which Judge Ciparick concurs.

Order reversed, etc.

Williams involved General Municipal Law § 205-e—the counterpart to section 205-a that applies to police officers. The two statutes have been interpreted interchangeably.