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Ram Krishna Maheshwari et al., Appellants, v. City of New York et al., Respondents,
et al., Defendants.

No. 54

COURT OF APPEALS OF NEW YORK

2 N.Y.3d 288; 810 N.E.2d 894; 778 N.Y.S.2d 442; 2004 N.Y. LEXIS 978

March 25, 2004, Argued

May 6, 2004, Decided

PRIOR HISTORY: Appeal from an order of the Ap-
pellate Division of the Supreme Court in the First Judi-
cial Department, entered August 7, 2003. The Appellate
Division, with two Justices dissenting, (1) reversed, on
the law, an order of the Supreme Court, New York
County (Marcy S. Friedman, J.), which had denied a mo-
tion by defendant Delsener/Slater Enterprises, Ltd. for
summary judgment, (2) granted the motion, and (3) dir-
ected entry of a judgment in favor of defendants Delsen-
er/Slater Enterprises, Ltd. and City of New York dismiss-
ing the complaint as against them.
Maheshwari v. City of New York, 307 A.D.2d 797, 763
N.Y.S.2d 287, 2003 N.Y. App. Div. LEXIS 8650 (N.Y. App.
Div. 1st Dep't, 2003), affirmed.
DISPOSITION: Order of the appellate division af-
firmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiffs, an injured party
and his wife, sued defendants, the City of New York and
a company that produced a concert, alleging negligence.
The trial court denied the company's motion for sum-
mary judgment, but the Supreme Court of New York,
Appellate Division, First Department, reversed the trial
court's judgment and granted summary judgment for the
company and the City. The court of appeals granted leave
to appeal.
OVERVIEW: An injured party was hurt when he was
attacked by four men while he was distributing pamph-
lets to concertgoers in a parking lot near a stadium, and
he sued New York City and a company that produced the
concert, alleging that they did not provide adequate se-
curity for the concert. The trial court denied the com-
pany's motion for summary judgment, but the intermedi-
ate appellate court reversed that judgment and granted
summary judgment for the company and the City. The
state's highest court held that (1) the evidence showed
that the company and the City took reasonable measures
to deal with issues of crowd control and other forms of
disorderliness, short of unprovoked criminal acts; (2)
random attacks such as that perpetrated on the injured
party were not a predictable result of gatherings by large
groups of people; and (3) even assuming that the com-
pany and the City were responsible for a lapse in security
in the parking lot where the attack occurred, the injured
party was not entitled to recover damages from the City
or the company because that lapse was not the proximate
cause of the injuries he sustained.
OUTCOME: The court of appeals affirmed the interme-
diate appellate court's judgment.
CORE TERMS: concert, parking areas, foreseeable,
stadium, parking, crowd, criminal acts, parking lot, fore-
seeability, proximate cause, police officers, summary
judgment, traffic, random, island, criminal assaults,
unidentified, assigned, causal, unprovoked, festival, in-
tervening act, provide adequate, adequate security, nor-

mal course, far removed, provocation, pedestrian, atten-
ded, assault
LexisNexis(R) Headnotes
Real Property Law > Landlord & Tenant > Duty to Re-
pair
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Crimin-
al Acts
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Duty to
Repair > Common Law Requirements
[HN1] New York landowners owe people on their prop-
erty a duty of reasonable care under the circumstances to
maintain their property in a safe condition. Although
landlords and permittees have a common law duty to
minimize foreseeable dangers on their property, includ-
ing the criminal acts of third parties, they are not the in-
surers of a visitor's safety.
Torts > Negligence > Duty > General Overview
[HN2] Foreseeability and duty are not identical concepts.
Foreseeability merely determines the scope of the duty
once the duty is determined to exist.
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN3] In cases arising out of injuries sustained on an-
other's property, the scope of the possessor's duty is
defined by past experience and the likelihood of conduct
on the part of third persons which is likely to endanger
the safety of a visitor.
Torts > Negligence > Causation > Proximate Cause >
General Overview
[HN4] A random criminal attack is not a predictable res-
ult of the gathering of a large group of people.
Torts > Negligence > Causation > Proximate Cause >
Foreseeability
[HN5] To establish a prima facie case of proximate
cause, a plaintiff must show that the defendant's negli-
gence was a substantial cause of the events which pro-
duced the injury. Where the acts of a third person inter-
vene between the defendant's conduct and the plaintiff's
injury, the causal connection is not automatically
severed. In such a case, liability turns on whether the in-
tervening act is a normal or foreseeable consequence of
Page 4
the situation created by the defendant's negligence. An
intervening act may break the causal nexus when it is ex-
traordinary under the circumstances, not foreseeable in
the normal course of events, or independent of or far re-
moved from the defendant's conduct.
HEADNOTES
Negligence -- Foreseeability -- Proximate Cause --
Failure to Provide Adequate Security in Concert
Parking Lot
Plaintiff, having sustained injuries as the result of a
random and unprovoked attack by four unidentified men
in the parking lot of a public park during a rock concert,
could not hold the municipal owner of the park and the
concert producer liable. Defendants took reasonable
measures to deal with the issues of crowd control and
other forms of disorderliness short of unprovoked crim-
inal acts. The brutal attack on plaintiff was not a foresee-
able result of any security breach.
COUNSEL: Nitkewicz & McMahon, LLP, Commack
(Edward J. Nitkewicz and Jinan M. Arafat of counsel),
for appellants. I. Defendants-respondents had notice of
criminal activity in connection with their rock concerts
and therefore had a duty to provide minimal security
measures which they failed to meet. (Provenzano v
Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 593
N.Y.S.2d 80; Iannelli v Powers, 114 A.D.2d 157, 498
N.Y.S.2d 377; Balsam v Delma Eng'g Corp., 139 A.D.2d
292, 532 N.Y.S.2d 105; Nallan v Helmsley-Spear, Inc., 50
N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Basso v
Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564;
Miller v State of New York, 62 N.Y.2d 506, 467 N.E.2d
493, 478 N.Y.S.2d 829; Jacqueline S. v City of New York,
81 NY2d 288, 614 N.E.2d 723, 598 N.Y.S.2d 160; Riss v
City of New York, 22 N.Y.2d 579, 240 N.E.2d 860, 293
N.Y.S.2d 897; Palsgraf v Long Is. R.R. Co., 248 N.Y. 339,
162 N.E. 99; Rotz v City of New York, 143 A.D.2d 301,
532 N.Y.S.2d 245.) II. Common contemporary experience
gives rise to a duty of care to protect users of the permit-
ted premises from disorder, unruliness, a melee or a riot
erupting from a cause ignited by the vagaries of individu-
als brought together in a heightened atmosphere such as
an all-day rock concert with drinking, marijuana
smoking and "tailgating." (Rotz v City of New York, 143
A.D.2d 301, 532 N.Y.S.2d 245; Pulka v Edelman, 40
N.Y.2d 781, 358 N.E.2d 1019, 390 N.Y.S.2d 393; Pals-
graf v Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99.) III.
Defendants-respondents failed to provide any security to
the sunken meadow parking field and thus failed to meet
their duty of care. (Curry v Baisley Park Assoc., 162
Misc. 2d 436, 617 N.Y.S.2d 420.) IV. Whether defend-
ants-respondents' failure to provide any security to the
parking field known as "Sunken Meadow" was a proxim-

ate cause of the assault upon plaintiff-appellant is a ques-
tion of fact for jury determination. (Garrett v Twin Parks
Northeast Site 2 Houses, 256 A.D.2d 224, 682 N.Y.S.2d
349; Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544,
706 N.E.2d 1163, 684 N.Y.S.2d 139; Rotz v City of New
York, 143 A.D.2d 301, 532 N.Y.S.2d 245; Burgundy
Basin Inn v Watkins Glen Grand Prix Corp., 51 A.D.2d
140, 379 N.Y.S.2d 873; Derdiarian v Felix Contr. Corp.,
51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166.) V.
The criminal assault upon plaintiff-appellant at a rock
concert was foreseeable and therefore not an intervening
act which severs the liability of defendants-respondents
for negligent security. (Derdiarian v Felix Contr. Corp.,
51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166; Kush
v City of Buffalo, 59 N.Y.2d 26, 449 N.E.2d 725, 462
N.Y.S.2d 831; Parvi v City of Kingston, 41 N.Y.2d 553,
362 N.E.2d 960, 394 N.Y.S.2d 161; Stephenson v John-
son & Son, 168 Misc. 2d 528, 638 N.Y.S.2d 889; Nallan v
Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451,
429 N.Y.S.2d 606.) VI. Defendant-respondent City of
New York is not entitled to an order of summary judg-
ment based upon issues not presented in the motion pa-
pers to the trial court below. (Dunham v Hilco Constr.
Co., 89 N.Y.2d 425, 676 N.E.2d 1178, 654 N.Y.S.2d 335;
Frank v City of New York, 211 A.D.2d 478, 621 N.Y.S.2d
546; Marshall v New York City Health & Hosps. Corp.,
186 A.D.2d 542, 588 N.Y.S.2d 364; Conroy v Swartout,
135 A.D.2d 945, 522 N.Y.S.2d 354; Mercedes-Benz Cred-
it Corp. v Dintino, 198 A.D.2d 901, 604 N.Y.S.2d 451;
Sebastian v State of New York, 93 N.Y.2d 790, 720
N.E.2d 878, 698 N.Y.S.2d 601; Matter of Richardson v
Fiedler Roofing, 67 N.Y.2d 246, 493 N.E.2d 228, 502
N.Y.S.2d 125; People v Rodriguez y Paz, 58 N.Y.2d 327,
448 N.E.2d 102, 461 N.Y.S.2d 248; Sega v State of New
York, 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51;
Carnegie Hall Corp. v City Univ. of N.Y., 286 A.D.2d
214, 729 N.Y.S.2d 93.) VII. The duty originally assigned
to Delsener/Slater Enterprises, Ltd. under the stadium
use agreement was not governmental but proprietary, and
when the City of New York later reassumed the duty it
remained proprietary. VIII. The City of New York's fail-
ure to provide security to the crime-infested parking
fields of its stadium where a rock concert was being held
for profit was an omission which fell within its propriet-
ary function. (Weiner v Metropolitan Transp. Auth., 55
N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141; Miller v
State of New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478
N.Y.S.2d 829; Preston v State of New York, 59 N.Y.2d
997, 453 N.E.2d 1241, 466 N.Y.S.2d 952; Bass v City of
New York, 38 A.D.2d 407, 330 N.Y.S.2d 569, 32 N.Y.2d
894, 300 N.E.2d 154, 346 N.Y.S.2d 814; Basso v Miller,
40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564; Nal-
lan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d
451, 429 N.Y.S.2d 606; Levy v State of New York, 262
A.D.2d 230, 692 N.Y.S.2d 354; Rashed v State of New
Page 5
York, 232 A.D.2d 394, 648 N.Y.S.2d 131; Ruchalski v
Schenectady County Community Coll., 239 A.D.2d 687,
656 N.Y.S.2d 784.)
Michael A. Cardozo, Corporation Counsel, New York
City (Julian L. Kalkstein and Larry A. Sonnenshein of
counsel), for City of New York, respondent. I. The duty
owed to plaintiff at a concert attended by 25,000 people
did not include a guarantee of protection from a random
act of violence. Failure to provide security from such an
indiscriminate, stealthy assault was not the proximate
cause of plaintiff's injury. (Hamilton v Beretta U.S.A.
Corp., 96 N.Y.2d 222, 750 N.E.2d 1055, 727 N.Y.S.2d 7;
Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579,
634 N.E.2d 189, 611 N.Y.S.2d 817; Lauer v City of New
York, 95 N.Y.2d 95, 733 N.E.2d 184, 711 N.Y.S.2d 112;
Tobin v Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301
N.Y.S.2d 554; Mason v U.E.S.S. Leasing Corp., 96
N.Y.2d 875, 756 N.E.2d 58, 730 N.Y.S.2d 770; Di Ponzio
v Riordan, 89 N.Y.2d 578, 679 N.E.2d 616, 657 N.Y.S.2d
377; Greene v Sibley, Lindsay & Curr Co., 257 N.Y. 190,
177 N.E. 416; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d
507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Leyva v Ri-
verbay Corp., 206 A.D.2d 150, 620 N.Y.S.2d 333; Flor-
man v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d
233.) II. Delsener/Slater Enterprises, Ltd. had a contrac-
tual duty with the City of New York to provide security
in the parking areas. Delsener was not absolved of any of
that duty by any security the City agreed to undertake.
(Florman v City of New York, 293 A.D.2d 120, 741
N.Y.S.2d 233; W.W.W. Assoc. v Giancontieri, 77 N.Y.2d
157, 566 N.E.2d 639, 565 N.Y.S.2d 440; Readco, Inc. v
Marine Midland Bank, 81 F.3d 295; A.H.A. Gen. Constr.
v New York City Hous. Auth., 92 N.Y.2d 20, 699 N.E.2d
368, 677 N.Y.S.2d 9; Modell & Co. v City of New York,
159 A.D.2d 354, 552 N.Y.S.2d 632, 76 N.Y.2d 845, 559
N.E.2d 1288, 560 N.Y.S.2d 129; Granada Bldgs. v City
of Kingston, 58 N.Y.2d 705, 444 N.E.2d 1325, 458
N.Y.S.2d 906; Public Improvements v Board of Educ., 56
N.Y.2d 850, 438 N.E.2d 876, 453 N.Y.S.2d 170; Matter of
Parkview v City of New York, 71 N.Y.2d 274, 519 N.E.2d
1372, 525 N.Y.S.2d 176, 71 N.Y.2d 995, 524 N.E.2d 879,
529 N.Y.S.2d 278, 488 U.S. 801, 109 S. Ct. 30, 102 L.
Ed. 2d 9.) III. The municipal defendants cannot be held
liable for the failure to adequately perform a govern-
mental function. (Balsam v Delma Eng'g Corp., 90
N.Y.2d 966, 688 N.E.2d 487, 665 N.Y.S.2d 613; Kircher v
City of Jamestown, 74 N.Y.2d 251, 543 N.E.2d 443, 544
N.Y.S.2d 995; Cuffy v City of New York, 69 N.Y.2d 255,
505 N.E.2d 937, 513 N.Y.S.2d 372; Weiner v Metropolit-
an Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124, 448
N.Y.S.2d 141; Riss v City of New York, 22 N.Y.2d 579,
240 N.E.2d 860, 293 N.Y.S.2d 897; Price v New York
City Hous. Auth., 92 N.Y.2d 553, 706 N.E.2d 1167, 684
N.Y.S.2d 143; Bonner v City of New York, 73 N.Y.2d 930,

536 N.E.2d 1147, 539 N.Y.S.2d 728; Vitale v City of New
York, 60 N.Y.2d 861, 458 N.E.2d 817, 470 N.Y.S.2d 358;
Krakower v City of New York, 217 A.D.2d 441, 629
N.Y.S.2d 435; Akinwande v City of New York, 260 A.D.2d
586, 688 N.Y.S.2d 651.)
Law Office of Ted M. Tobias, New York City (Milagros
A. Matos of counsel), for Delsener/Slater Enterprises,
Ltd., respondent. I. Delsener/Slater Enterprises, Ltd. had
no duty to provide security because it had no notice of
criminal activity in the area. (Florman v City of New
York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Karp v Saks
Fifth Ave., 225 A.D.2d 1014, 639 N.Y.S.2d 575.) II. De-
fendant met its obligation to provide minimal security
and therefore plaintiff failed to establish that inadequate
security was the proximate cause of his injuries. (Burgos
v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d
1163, 684 N.Y.S.2d 139; Brewster v Prince Apts., 264
A.D.2d 611, 695 N.Y.S.2d 315, 94 N.Y.2d 875, 726
N.E.2d 483, 705 N.Y.S.2d 6; Karp v Saks Fifth Ave., 225
A.D.2d 1014, 639 N.Y.S.2d 575; Leyva v Riverbay Corp.,
206 A.D.2d 150, 620 N.Y.S.2d 333.) III. Delsener/Slater
Enterprises, Ltd. had no duty to provide greater security
because there was no indication that plaintiff's assailants
were dangerous. (Florman v City of New York, 293
A.D.2d 120, 741 N.Y.S.2d 233; Rotz v City of New York,
143 A.D.2d 301, 532 N.Y.S.2d 245.) IV. If there was inad-
equate security in the ballfield, liability rests with the
City of New York and not with Delsener/Slater Enter-
prises, Ltd. (Florman v City of New York, 293 A.D.2d
120, 741 N.Y.S.2d 233; Burgos v Aqueduct Realty Corp.,
92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139.)
JUDGES: Opinion by Judge Rosenblatt. Chief Judge
Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read
and R.S. Smith concur.
OPINION BY: ROSENBLATT
OPINION
[***443] [**895] [*291] Rosenblatt, J.
Randomly and without provocation, four unidenti-
fied hoodlums attacked plaintiff in the parking lot at a
music festival in a New York City park. We must decide
whether plaintiff may hold the City and the concert pro-
ducer liable.
On July 10 and 11, 1996, defendant Delsener/Slater
produced a Lollapalooza concert at Downing Stadium, a
facility owned by defendant City of New York, on Ran-
dall's Island. The festival included heavy metal and rap
acts such as Metallica, Soundgarden, Wu Tang Clan and
the Ramones. Delsener entered into a [*292] stadium
use agreement with the City, by which Delsener was to
Page 6
provide "supervision of the parking areas for the Event,"
including "sufficient trained security personnel as may be
necessary" to police the stadium and additional facilities,
ensure the orderly entrance and exit of patrons, manage
the parking and traffic flow, and safeguard the property.
In addition, the contract called on Delsener to "pre-
pare and submit a site and operations plan" detailing
"public vehicular and pedestrian traffic circulation, park-
ing control, and security from the Triborough Bridge
ramps and the access roads to the designated ballfields to
be used for parking and access to the stadium area." The
agreement also obligated Delsener to furnish a plan for
the "number, location and [**896] [***444] hours of
deployment of licensed security personnel assigned to
the . . . parking fields."
Several weeks before the event, representatives of
those involved in the planning (including Delsener, the
Police Department, the Parks Department and other
private security companies) attended an "all-agency
meeting" to discuss logistics. The participants agreed that
the City, through the Police Department and the Parks
Department Parks Enforcement Police (PEP), would
provide security in the parking areas. On the days of the
concert, the security plan was in place: 24 police officers,
three sergeants and approximately two dozen PEP of-
ficers patrolled the parking areas. Police were assigned to
maintain the island during the concert and to move the
crowd of 25,000 people safely in and out of the stadium.
PEP's role was to patrol the parking areas in search of il-
legal vendors, alcohol, open fires and littering. Delsener
also contracted with another firm to maintain the traffic
flow and direct parking in the parking areas.
On July 10, 1996, plaintiff went to the concert to
distribute pamphlets on behalf of the International Soci-
ety for Krishna Consciousness. While in the Sunken
Meadow parking area, four unidentified young men as-
saulted him without provocation. When the attack oc-
curred, officers were stationed at certain parts of the
parking fields, but apparently none were in the Sunken
Meadow parking area. Plaintiff suffered serious personal
injury at the hands of his attackers, whom he described
as "heavily drunk, red eyes, bottles in their hand,
smelling." As the Appellate Division noted, "[a]lthough
plaintiff did not see any police officers or anybody on
horseback in the parking lot, he saw people in uniform
directing traffic" (307 A.D.2d 797, 798-799, [*293] 763
N.Y.S.2d 287 [1st Dept 2003]). At a deposition, a police
officer testified that, according to his "post list," no po-
lice officer had been assigned to the Sunken Meadow
parking area.
In his complaint, plaintiff (and his wife derivatively)
sued Delsener and the City for not providing adequate
security. 1 Delsener moved for summary judgment,

claiming in essence that it owed plaintiff no duty to pre-
vent a random criminal act of this kind. Supreme Court
denied the motion and Delsener appealed. By a divided
court, the Appellate Division reversed and granted sum-
mary judgment not only to Delsener but to the City as
well. 2 The Court based its decision on Florman v City of
New York (293 A.D.2d 120, 741 N.Y.S.2d 233 [1st Dept
2002]), in which another plaintiff was injured in the
parking area at the same Lollapalooza concert. In assum-
ing that the injury in Florman was the result of a willful
attack, the Court concluded that plaintiff had failed to
raise a triable issue of fact as to foreseeability and prox-
imate cause.
1 The remaining defendants--Randall's Island
Sports Foundation, Inc., Keith Kevan Organiza-
tion, Inc. and Keith Kevan--are not parties to this
appeal. Supreme Court dismissed all claims
against the Kevan defendants.
2 Although the City did not appeal from Su-
preme Court's order, the Appellate Division had
the authority to search the record and grant sum-
mary judgment to the City under CPLR 3212 (b)
(see Merritt Hill Vineyards Inc. v Windy Hgts.
Vineyard, 61 N.Y.2d 106, 460 N.E.2d 1077, 472
N.Y.S.2d 592 [1984]).
Two Justices dissented, believing there to be ques-
tions of fact as to the predictability of criminal assaults at
a Lollapalooza concert. They referred to a journalist's de-
scription of the event as attended by "a moshing crowd
of bare-chested, sweating, staggeringly drunk and stoned
'Beavis and Butt-Head' types." (307 A.D.2d at 801,
[**897] [***445] 763 N.Y.S.2d 287.) We now affirm
the order of the Appellate Division.
In arguing that the City and Delsener breached their
duty to provide adequate security in the parking area,
plaintiff seeks to hold Delsener liable under the stadium
use agreement and the City in its proprietary capacity as
the owner of Downing Stadium and Randall's Island.
Plaintiff maintains that the crime was foreseeable be-
cause defendants had notice of criminal activity at previ-
ous Lollapalooza festivals, and that defendants' negli-
gence in providing security was a proximate cause of his
injury.
Plaintiff essentially argues that Lollapalooza attracts
concertgoers who are predictably prone to criminal beha-
vior. In support, he presented statistics from previous
Lollapalooza concerts [*294] in which arrests were
made for disorderly conduct, misdemeanor assault, crim-
inal mischief, resisting arrest and possession of stolen
property. He also claims that defendant knew that one of
the musical acts, Wu Tang Clan, had violent incidents at
previous concerts. Further, plaintiff argues that defend-
Page 7
ants knew that tailgating occurred in the parking areas
before and during the concert. Tailgating, he contends,
increases the chances that criminal activity will occur,
presumably because tailgaters may drink alcoholic
beverages.
Defendants argue that any duty they owed to
plaintiff did not include a guarantee of protection from a
random act of violence. They assert that the indiscrimin-
ate, spontaneous assault upon plaintiff was not proxim-
ately caused by any deficiency in security. We conclude
that the Appellate Division was correct in accepting de-
fendants' arguments.
We have long held that [HN1] "New York landown-
ers owe people on their property a duty of reasonable
care under the circumstances to maintain their property
in a safe condition" (Tagle v Jakob, 97 N.Y.2d 165, 168,
763 N.E.2d 107, 737 N.Y.S.2d 331 [2001]; see Basso v
Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 386 N.Y.S.2d
564 [1976]). Although landlords and permittees have a
common-law duty to minimize foreseeable dangers on
their property, including the criminal acts of third parties,
they are not the insurers of a visitor's safety (see Burgos
v Aqueduct Realty Corp., 92 N.Y.2d 544, 548, 706
N.E.2d 1163, 684 N.Y.S.2d 139 [1998]; Jacqueline S. v
City of New York, 81 N.Y.2d 288, 292-293, 614 N.E.2d
723, 598 N.Y.S.2d 160 [1993], rearg denied 82 N.Y.2d
749, 622 N.E.2d 308, 602 N.Y.S.2d 807 [1993]; Nallan v
Helmsley-Spear Inc., 50 N.Y.2d 507, 519, 407 N.E.2d
451, 429 N.Y.S.2d 606 [1980]). As we have noted,
however, [HN2] foreseeability and duty are not identical
concepts. Foreseeability merely determines the scope of
the duty once the duty is determined to exist (see Pulka v
Edelman, 40 N.Y.2d 781, 785, 358 N.E.2d 1019, 390
N.Y.S.2d 393 [1976]). [HN3] In cases arising out of in-
juries sustained on another's property, the scope of the
possessor's duty is defined by past experience and the
"likelihood of conduct on the part of third persons . . .
which is likely to endanger the safety of the visitor"
(Nallan, 50 N.Y.2d at 519, quoting Restatement [Second]
of Torts § 344, Comment f).
Here, the brutal attack was not a foreseeable result
of any security breach. The types of crimes committed at
past Lollapalooza concerts are of a lesser degree than a
criminal assault, and would not lead defendants to pre-
dict that such an attack would occur or could be preven-
ted. By all accounts, defendants took reasonable meas-
ures to deal with issues of crowd control and other forms
of disorderliness short of unprovoked criminal acts.
[HN4] A random criminal attack of this nature is not a
[**898] [***446] predictable result of the gathering of
a large group of people.
[*295] The Appellate Division concluded, as do
we, that the record reveals no failure by the organizers of
 Page 8

the event to provide adequate control or security. The
concert was host to thousands of people over a large
area. Security officers cannot be everywhere at once. As
the Appellate Division stated in Florman, "[i]t is difficult
to understand what measures could have been undertaken
to prevent plaintiff's injury except presumably to have
had a security officer posted at the precise location where
the incident took place or wherever pedestrians were
gathered, surely an unreasonable burden" (293 A.D.2d at
127).
Plaintiff and the Appellate Division dissenters rely
heavily on Rotz v City of New York (143 A.D.2d 301, 532
N.Y.S.2d 245 [1st Dept 1988]). There, the Appellate Di-
vision denied summary judgment to defendants after the
plaintiff sustained injury at a concert in Central Park
when a stampeding crowd trampled over him. While we
do not express an opinion on the merits of that case, it is
enough to say that it is, in any event, distinguishable
from the one before us. The Appellate Division correctly
recognized that Rotz involved crowd control, which is
not the issue here.
We also agree with the Appellate Division's conclu-
sions that even assuming a lapse in the security in the
parking lot, plaintiff's injuries were not the result of any
such lapse, but were caused by an independent, interven-
ing criminal act. [HN5] To establish a prima facie case of
proximate cause, a plaintiff must show "that the defend-
ant's negligence was a substantial cause of the events
which produced the injury" (Derdiarian v Felix Contr.
Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d
166 [1980] ). "Where the acts of a third person intervene
between the defendant's conduct and the plaintiff's injury,
the causal connection is not automatically severed. In
such a case, liability turns upon whether the intervening
act is a normal or foreseeable consequence of the situ-
ation created by the defendant's negligence" (id.). An in-
tervening act may break the causal nexus when it is "ex-
traordinary under the circumstances, not foreseeable in
the normal course of events, or independent of or far re-
moved from the defendant's conduct" (id.). Here, as an
independent act far removed from defendants' conduct,
the criminal assault broke the causal nexus. The attack
was extraordinary and not foreseeable or preventable in
the normal course of events.
Inasmuch as we agree with the Appellate Division's
dismissal of the action against the City on the lack of
foreseeability and on the absence of causation, we need
not address the City's argument that it is immune from li-
ability based on its claim [*296] that it acted in a gov-
ernmental, and not proprietary, capacity. In addition,
plaintiff's remaining arguments are without merit.
Accordingly, the Appellate Division order should be
affirmed, with costs.
Chief Judge Kaye and Judges G.B. Smith, Ciparick,
Graffeo, Read and R.S. Smith concur.
Order affirmed, with costs.

2 of 55 DOCUMENTS

Caution
As of: Sep 10, 2008

Keith Bauer, Appellant, v. Female Academy of the Sacred Heart, Defendant and
Third-Party Plaintiff-Respondent. Environmental Service Systems, Third-Party De-
fendant-Respondent.

No. 21

COURT OF APPEALS OF NEW YORK

97 N.Y.2d 445; 767 N.E.2d 1136; 741 N.Y.S.2d 491; 2002 N.Y. LEXIS 548

February 6, 2002, Argued

March 26, 2002, Decided

PRIOR HISTORY: Appeal from a judgment of the Supreme Court (Bernard J. Malone, Jr., J.), entered May

24, 2001 in Albany County, upon a verdict in favor of de-
fendant, dismissing the complaint and bringing up for re-
view (1) a prior nonfinal order of the Appellate Division
of the Supreme Court in the Third Judicial Department,
entered September 8, 2000, as amended by an unpub-
lished order entered January 25, 2001, which, with two
Justices dissenting, modified, on the law, and, as modi-
fied, affirmed a judgment and an amended judgment of
the Supreme Court (Bernard J. Malone, Jr., J.), entered
upon a verdict in favor of plaintiff, awarding plaintiff
damages in the principal sum of $ 3,408,323.28 and ap-
portioning damages between defendant and the third-
party defendant; the modification consisted of remitting
the matter to Supreme Court for a new trial on the issue
of liability; and (2) a prior nonfinal order of the Appel-
late Division, entered December 30, 1998, which, with
two Justices dissenting, modified, on the law, and, as
modified, affirmed an order of the Supreme Court (Vic-
toria A. Graffeo, J.), entered in Albany County, denying a
motion by defendant and the third-party defendant to dis-
miss all of plaintiff's causes of action except for one pre-
dicated on Labor Law § 202, and denying a cross motion
by plaintiff for summary judgment; the modification con-
sisted of reversing so much of the order as denied the
motions of defendant and the third-party defendant to
dismiss plaintiff's Labor Law § 240 cause of action, and
denied the motion by the third-party defendant for sum-
mary judgment dismissing defendant's claim for contrac-
tual indemnification, granting those motions, and dis-
missing those claims.
Bauer v Female Academy of Sacred Heart, 250
AD2d 298, modified.
Bauer v Female Academy of Sacred Heart, 275
AD2d 809, modified.
DISPOSITION: Judgment appealed from and orders
of the Appellate Division brought up for review modified
in part, affirmed in part and remitted in part for new trial.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff injured window
cleaner appealed from a judgment and orders of the Ap-
pellate Division (New York) summarily dismissing his
claim against defendant premises owner predicated on
N.Y. Lab. Law § 240(1) and directing trial of his unsuc-
cessful N.Y. Lab. Law § 202 claim subject to comparative
negligence principles.
OVERVIEW: A window cleaner was injured in a fall,
and sued the landowner pursuant to N.Y. Lab. Law § 202,
which dealt especially with window cleaners, and N.Y.
Lab. Law § 240(1), which imposed strict liability on
Page 9
landowners in certain situations. The landowner brought
a third-party action against the cleaner's employer, al-
leging it failed to provide proper safety equipment. The
high court held that the existence of an action peculiar to
window cleaners did not preclude the cleaner from seek-
ing relief under the strict liability statute, since they both
dealt with cleaning and covered varying situations. The
strict liability claim should have been allowed to proceed
to trial. The intermediate court had properly, however,
determined that liability under the window cleaning stat-
ute was subject to comparative negligence principles,
since the statute no longer mandated particular safety
equipment or precautions.
OUTCOME: The court modified the judgment and or-
ders to the extent of reinstating the cleaner's strict liabil-
ity claim and remitted the matter to the trial court for trial
of that claim only.
CORE TERMS: window, anchor, cause of action, strict
liability, cleaning, window cleaner's, industrial, hook,
safety devices, exterior, washer, comparative negligence,
safe, summary judgment, ordinance, modified, industrial
board, comparative, inadequacy, common-law, lessee,
lanyard, Labor Law, negligence principles, board of
standards, evidence of negligence, public buildings, ex-
clusivity, coverage, cleaner
LexisNexis(R) Headnotes
Labor & Employment Law > Occupational Safety &
Health > Duties & Rights
[HN1] According to N.Y. Comp. Codes R. & Regs. tit.
12, § 21.13, window cleaning anchors must be round,
like the openings on the hooks that clip onto them.
Governments > Legislation > Interpretation
Labor & Employment Law > Occupational Safety &
Health > Civil Liability
[HN2] New York case law does not prohibit assertion of
alternative claims under the New York Labor Law.
Labor & Employment Law > Occupational Safety &
Health > Duties & Rights
[HN3] N.Y. Lab. Law § 202 protects people who clean
windows and exterior surfaces of buildings. The require-
ments of N.Y. Lab. Law § 202 apply to owners, lessees,
agents, and managers. N.Y. Lab. Law § 202 is inapplic-
able to multiple dwellings of six stories or less and to
non-public buildings. N.Y. Lab. Law § 202 necessarily in-
volves the periodic cleaning of windows at residences,

albeit not at multiple residences less than six stories in
height.
Labor & Employment Law > Occupational Safety &
Health > Duties & Rights
[HN4] N.Y. Lab. Law § 240(1) applies to workers en-
gaged in the cleaning of a building. Strict liability under
N.Y. Lab. Law § 240(1) flows to owners and contractors
only. N.Y. Lab. Law § 240(1) is inapplicable to one- and
two-family homes. Moreover, although N.Y. Lab. Law §
240(1) covers cleaning, it does not apply to routine
household cleaning.
Labor & Employment Law > Occupational Safety &
Health > Duties & Rights
[HN5] While N.Y. Lab. Law §§ 202, 240, sometimes ap-
ply to the same fact patterns, they do not in every case.
The sections serve different goals, apply to different de-
fendants, and are interpreted differently.
Torts > Negligence > Defenses > Comparative Negli-
gence > General Overview
Torts > Negligence > Proof > Violations of Law > Gen-
eral Overview
Torts > Strict Liability > General Overview
[HN6] In New York State, statutory causes of action pre-
dicated upon violations of administrative regulations do
not give rise to strict liability.
Labor & Employment Law > Occupational Safety &
Health > Duties & Rights
[HN7] See N.Y. Lab. Law § 202.
Governments > Local Governments > Claims By &
Against
Torts > Negligence > Defenses > Comparative Negli-
gence > Intentional & Reckless Conduct
Torts > Negligence > Proof > Violations of Law > Gen-
eral Overview
[HN8] In New York, the violation of a rule of an admin-
istrative agency or of an ordinance of a local govern-
ment, lacking the force and effect of a substantive legis-
lative enactment, is merely some evidence which the jury
may consider on the question of a defendant's negli-
gence. Thus, case law determining whether a particular
rule violation results in a finding of negligence per se or
is merely some evidence of negligence is relevant to de-
termining when such violations result in strict liability
versus comparative negligence.
Page 10
Governments > Legislation > Enactment
Governments > Local Governments > Administrative
Boards
Governments > Local Governments > Duties & Powers
[HN9] The constitution of New York State commits to
the legislature alone the power to enact a statute. A con-
stitutional statute, once passed, cannot be changed or
varied according to the whim or caprice of any officer,
board, or individual. It remains fixed until repealed or
amended by the legislature.
Administrative Law > Separation of Powers > Legislat-
ive Controls > General Overview
Governments > Local Governments > Administrative
Boards
Governments > Local Governments > Duties & Powers
[HN10] New York's legislature can give to or confer
upon a commission, officer, board, or municipality the
power to make rules and ordinances governing the ad-
ministration of their respective affairs.
HEADNOTES
Labor - Safe Place to Work - Window Washer - Mul-
tiple Statutory Causes of Action Permitted
1. A window washer, who was injured when he fell
from the third story of a building, may assert claims un-
der both Labor Law §§ 202 and 240 (1). Allowing a
claim under section 240 (1) would not render section 202
"virtually useless." While the statutes will sometimes ap-
ply to the same fact patterns, they do not in every case.
They serve different goals, apply to different defendants,
and have been interpreted differently. The fact that cov-
erage under the two sections may overlap is no reason to
imply exclusivity. The Legislature has not expressed an
intention that the statutes be mutually exclusive, and in-
clusion of the term "cleaning" in section 240 (1) negates
any inference of exclusivity. The assertion of alternative
Labor Law claims has never been prohibited, and merely
because an injured window cleaner's claim appears cog-
nizable under both statutes does not mean that one cause
of action must be chosen to the exclusion of the other.
Negligence - Comparative Negligence - Window
Washer's Claim under Labor Law § 202
2. A violation of Labor Law § 202, which provides
a cause of action to persons injured while cleaning win-
dows and building exteriors, requires application of com-
parative negligence principles. Section 202 mandates
that safety devices be in place "as may be required and
approved by the board of standards and appeals." Al-
though the anchors on defendant's building to which an
exterior window washer may attach a safety belt did not

meet Industrial Code requirements, a violation of a regu-
lation or ordinance is only some evidence of negligence.
Statutory causes of action predicated upon violations of
administrative regulations do not give rise to strict liabil-
ity. Strict liability could result from the absence or inad-
equacy of anchors under prior versions of section 202,
because there was an explicit reference to safety anchors
in the language of the statute, and the absence of any
safety devices was a violation of the statute itself.
Labor - Safe Place to Work - Window Washer - Stat-
utory Liability - Retrial
3. Plaintiff, an injured window washer whose first
trial resulted in a verdict in his favor and whose second
trial resulted in a verdict in defendant's favor, may assert
a cause of action pursuant to Labor Law § 240 (1) in a
third trial. Whether plaintiff can make a successful case
for a violation of section 240 (1) has yet to be demon-
strated since plaintiff's motion for summary judgment
was initially denied. Because plaintiff's strict liability
verdict at the first trial was based upon a finding of a vi-
olation of the requirements of Labor Law § 202, that ver-
dict may not stand as a substitute for a finding of strict li-
ability under section 240 (1). Moreover, the jury finding
at the second trial, that defendant's negligence was not a
proximate cause of plaintiff's injuries, has no estoppel ef-
fect upon remittal since the theory of liability under sec-
tion 240 (1) involves different statutory duties and pos-
sibilities of causation that the previous juries did not con-
sider.
COUNSEL: O'Connell and Aronowitz, Albany
(Cornelius D. Murray and James A. Shannon of
counsel), for appellant. I. A window washer injured
after falling from the third floor window of a school as a
result of the defendant's failure to provide safe anchors
has a cause of action under Labor Law § 240 , independ-
ent of any cause of action under Labor Law § 202.
(Cruz v Bridge Harbor Hgts. Assoc., 249 AD2d 44, 96
NY2d 705; Williamson v 16 W. 57th St. Co., 256 AD2d
507; Retamal v Osborne Mem. Home Assn., 256 AD2d
506; Ojeda v Peak Janitorial Servs., 270 AD2d 322, 95
NY2d 755; Ferrari v Niasher Realty, 175 AD2d 591;
Brown v Christopher St. Owners Corp., 87 NY2d 938;
Rivers v Sauter, 26 NY2d 260; Koenig v Patrick Constr.
Corp., 298 NY 313; Ball v State of New York, 41 NY2d
617; Cimo v State of New York, 306 NY 143.) II. The rel-
evant legislative history clearly establishes that the Le-
gislature had absolutely no intention of transforming
Labor Law § 202 from a strict liability statute into a
comparative negligence statute when it amended section
202 in 1970. (Zimmer v Chemung County Performing
Arts, 65 NY2d 513; Amo v Little Rapids Corp., 268
AD2d 712; Craft v Clark Trading Corp., 257 AD2d 886;
Tomlins v Siltone Bldg. Co., 267 AD2d 947; Koenig v
Page 11
Patrick Constr. Corp., 298 NY 313; Fumarelli v Marsam
Dev., 92 NY2d 298; Pollard v Trivia Bldg. Corp., 291 NY
19.) III. The original jury verdict should be reinstated.
Friedman, Hirschen, Miller & Campito, P.C.,
Schenectady (Lynn M. Blake of counsel), for defendant
and third-party plaintiff-respondent. I. Regardless of
how this Court construes Labor Law § 202, the judgment
dismissing plaintiff's complaint should be affirmed. The
jury found that plaintiff's own negligence was the sole
proximate cause of his injuries, and that finding was
reasonable given the evidence presented at trial. (Duda
v Rouse Constr. Corp., 32 NY2d 405; Mendes v Caristo
Constr. Corp., 5 AD2d 268, 6 NY2d 729; Nohejl v 40 W.
53rd Partnership, 205 AD2d 462; Weininger v Hagedorn
& Co., 91 NY2d 958; Gootkin v Uniform Print. & Supply
Co., 24 AD2d 448; Aviles v Crystal Mgt., 253 AD2d 607,
93 NY2d 804; Mack v Altmans Stage Light. Co., 98
AD2d 468.) II. Labor Law § 202 is a comparative negli-
gence statute. (Long v Forest-Fehlhaber, 55 NY2d 154;
Teller v Prospect Hgts. Hosp., 280 NY 456; Rocovich v
Consolidated Edison Co., 78 NY2d 509.) III. Labor Law
§ 202 is plaintiff's exclusive remedy. (Rocovich v Con-
solidated Edison Co., 78 NY2d 509; Staples v Town of
Amherst, 146 AD2d 292; Board of Coop. Educ. Servs. v
Goldin, 38 AD2d 267, 30 NY2d 486; Williamson v 16 W.
57th St. Co., 256 AD2d 507.)
Thuillez, Ford, Gold & Johnson, LLP, Albany (Michael
J. Hutter of counsel), and James P. O'Connor, New York
City, for third-party defendant-respondent. I. Labor Law
§ 202 provides the exclusive Labor Law cause of action
for plaintiff as he was injured in the course of commer-
cial window cleaning activities involving a multistory
nonresidential building subject to the section, which
activities were not incident to construction, thereby pre-
cluding a cause of action under Labor Law § 240 (1).
(Narducci v Manhasset Bay Assoc., 96 NY2d 259;
Koenig v Patrick Constr. Corp., 298 NY 313; Connors v
Boorstein, 4 NY2d 172; Brown v Christopher St. Owners
Corp., 87 NY2d 938; Terry v Young Men's Hebrew Assn.,
78 NY2d 978; Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY2d 494; Wingert v Krakauer, 76 App Div 34; Butler v
Townsend, 126 NY 105; Kimmer v Weber, 151 NY 417;
Stewart v Ferguson, 164 NY 553.) II. Labor Law § 202 is
a negligence-based statute and not an absolute liability
statute, requiring proof of a violation of a regulation pro-
mulgated pursuant to its rule-making delegation, which
violation constitutes some proof of negligence, and un-
der which plaintiff's comparative negligence is to be
considered. (Schumer v Caplin, 241 NY 346; Pollard v
Trivia Bldg. Corp., 291 NY 19; Kindga v Noyes Co., 260
NY 521; Teller v Prospect Hgts. Hosp., 280 NY 456;
Gonzalez v Concourse Plaza Syndicates, 31 AD2d 401;
Durham v Metropolitan Elec. Protective Assn., 27 AD2d

818, 18 NY2d 433; Hunter v 1001 Tenants Corp., 16
Misc 2d 582; Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY2d 494; Schmidt v Merchants Despatch Transp. Co.,
270 NY 287.) III. Plaintiff has not established defendant's
liability as a matter of law under his alleged Labor Law
§ 240 (1) and Labor Law § 202 causes of action as
pleaded. (Aviles v Crystal Mgt., 253 AD2d 607; Tweedy
v Roman Catholic Church of Our Lady of Victory, 232
AD2d 630; Anderson v Schul/Mar Constr. Corp., 212
AD2d 493; J.R. Loftus, Inc. v White, 85 NY2d 874; Bien-
er v City of New York, 47 AD2d 520; Bacon v Celeste, 30
AD2d 324; Zimmer v Chemung County Performing Arts,
65 NY2d 513; Weininger v Hagedorn & Co., 91 NY2d
958.) IV. The judgment dismissing the complaint should
be affirmed, based upon the verdict in the second trial
which found that plaintiff's own negligence was the
proximate cause of his injuries.
JUDGES: Opinion by Judge Ciparick. Chief Judge Kaye
and Judges Smith, Levine, Wesley and Rosenblatt con-
cur. Judge Graffeo took no part.
OPINION BY: CIPARICK
OPINION
[*449] [***492] [**1137] Ciparick, J.
The two issues to be resolved on this appeal are
first, whether an injured window cleaner's claims under
Labor Law § 202 and Labor Law § 240 (1) can coexist,
and second, whether a violation of Labor Law § 202,
which gives a cause of action to persons injured while
cleaning windows and building exteriors, results in strict
liability or comparative negligence. We conclude that
plaintiff can assert claims under both Labor Law § 202
and Labor Law § 240 (1), and that Labor Law § 202 re-
quires application of comparative negligence principles.
Keith Bauer was a window washer employed by
third-party defendant Environmental Service Systems
(ESS). In October 1992, defendant Female Academy of
the Sacred Heart hired ESS to clean windows, including
the third floor exterior windows, of a building located on
its campus in Albany. As is sometimes the case with
older buildings, the exterior portions of the windows
were to be cleaned using the belt-and-anchor method,
meaning that a window cleaner wears a safety belt
through which an adjustable wire (or lanyard) runs, with
hooks on each end. The cleaner typically hooks one end
of the lanyard to one of two anchors on each side of a
window while standing inside and then steps onto the
window ledge, hooking the other end to the second an-
chor. The cleaner keeps both ends of the lanyard hooked
to the anchors while washing the window. When fin-
ished, the cleaner normally detaches one hook, steps in-
Page 12
side the building and then detaches the second hook.
[HN1] According to current Industrial Code require-
ments, anchors must be round, like the openings on the
hooks that clip onto them (see, 12 NYCRR 21.13). The
parties do not dispute that the anchors outside the third
floor of defendant's building were square. The openings
on the hooks used by ESS were round (see, 12 NYCRR
21.11).
On the day of the accident, the ESS foreman as-
signed plaintiff the job of cleaning the third floor exterior
windows. [*450] Plaintiff was not experienced with the
belt-and-anchor method. After cleaning his first window
that day, plaintiff detached the left hook of his lanyard
from its anchor. Then, while still standing on the window
ledge, plaintiff attempted to detach the right hook, which
became stuck on the square anchor. Still standing on the
ledge, plaintiff jiggled the hook with the safety clip open
and finally pried it free, but lost his balance and fell to
the ground three stories below and was severely injured.
Plaintiff commenced this action against defendant
and others, alleging violations of Labor Law §§ 200, 202
and 240 (1), and common-law negligence. Defendant
then commenced a third-party action against ESS seek-
ing both contractual and common-law contribution and
indemnification. After discovery, both defendant and
ESS moved to dismiss all of plaintiff's causes of action
except for the Labor Law § 202 claim, arguing that that
section was the exclusive statutory remedy available to
an injured window cleaner. Plaintiff cross-moved for
summary judgment on his Labor Law § 240 (1) claim.
Supreme Court denied the motions and the cross motion,
[***493] [**1138] holding that plaintiff could allege
alternative Labor Law causes of action, along with com-
mon-law negligence, but finding questions of fact pre-
cluding summary judgment. The Appellate Division
modified by granting defendants' motions for summary
judgment dismissing the Labor Law § 240 (1) claim. The
court held that the Legislature did not intend actions un-
der section 240 (1) and section 202 to be maintained sim-
ultaneously (250 AD2d 298, 301 [1998]). After plaintiff
withdrew his Labor Law § 200 and common-law negli-
gence causes of action, the case proceeded to trial on the
Labor Law § 202 claim.
At trial, Supreme Court granted plaintiff's motion for
a directed verdict finding that the use of square anchors
at defendant's building constituted a violation of Labor
Law § 202 and that, because a violation of Labor Law §
202 resulted in strict liability, the only question left for
the jury--other than damages--was whether defendants'
negligence proximately caused plaintiff's injuries. The
jury returned a verdict in plaintiff's favor and awarded
damages, apportioning 80% of the fault to ESS and 20%
to defendant.

On defendants' appeal, the Appellate Division held
that, although Labor Law § 202 was originally enacted as
a strict liability statute, a 1970 amendment made it a
comparative negligence statute by deferring to the safety
standards for window cleaners set forth in regulations of
the Industrial Board (275 AD2d 809, 811 [2000]). The
court sent the case back for [*451] another trial on
plaintiff's Labor Law § 202 claim, this time with applica-
tion of comparative negligence principles.
At the second trial, the jury found that, although de-
fendant was negligent, its negligence was not a substan-
tial factor in causing plaintiff's injuries. Plaintiff ap-
pealed, bringing up for review the two prior orders of the
Appellate Division. We now modify by reinstating
plaintiff's Labor Law § 240 (1) claim and remit to Su-
preme Court on that cause of action only.
I under the requirements of the Industrial Code, bear no
Addressing plaintiff's Labor Law § 240 (1) cause of
action, the Appellate Division held that when section 202
was enacted it offered window cleaners the "precise pro-
tection afforded other enumerated workers" under sec-
tion 240 (1); that allowing claims under both sections
would render section 202 "virtually useless"; and hence
that the Labor Law § 240 (1) claim required dismissal
(250 AD2d at 301). We disagree. The Legislature has not
expressed an intention that these statutes be mutually ex-
clusive and we see no need to imply such an intention.
Indeed, inclusion of the term "cleaning" in Labor Law §
240 (1) makes that position untenable.
[HN2] This Court has never prohibited assertion of
alternative Labor Law claims. More importantly, the
spheres of activity to which Labor Law § 202 and Labor
Law § 240 (1) apply reflect their separate histories. We
would be ill-advised to hold that--simply because an in-
jured window cleaner's claim appears cognizable under
both Labor Law § 202 and Labor Law § 240 (1)--one
cause of action must be chosen to the exclusion of the
other.
[HN3] Labor Law § 202 protects people who clean
windows and exterior surfaces of buildings. Among oth-
er activities, [HN4] Labor Law § 240 (1) applies to
workers engaged in the "cleaning" of a building. The re-
quirements of Labor Law § 202 apply to owners, lessees,
agents and managers while strict liability under Labor
Law § 240 (1) flows to owners and contractors only.
Labor Law § 202 is inapplicable to multiple dwellings of
six stories or less and [***494] [**1139] to nonpublic
buildings, while Labor Law § 240 (1) is inapplicable to
one- and two-family homes. Moreover, although Labor
Law § 240 (1) covers "cleaning," it does not apply to
routine household cleaning (Brown v Christopher St.
Owners Corp., 87 NY2d 938 [1996]). Conversely, Labor
Page 13
Law § 202 necessarily involves the periodic cleaning of
windows at residences, albeit not at multiple residences
less than six stories in height. Labor Law § 240 (1) has
no similar requirement.
The inescapable conclusion is that [HN5] while the
statutes will sometimes apply to the same fact patterns,
they do not in every [*452] case. The sections serve
different goals, apply to different defendants and have
been interpreted differently. The fact that Labor Law §
202 coverage may often overlap with Labor Law § 240
(1) coverage is not a sound reason to imply exclusivity.
We find unpersuasive defendants' contention that
this cause of action is unavailable since Labor Law § 240
(1) imposes obligations on defendants incompatible with
those imposed by Labor Law § 202. To the extent Labor
Law § 240 (1) may impose liability upon parties who,
responsibility for the provision of certain safety devices,
that problem can be addressed, in appropriate circum-
stances, by a third-party action.
Here, plaintiff may pursue his Labor Law § 240 (1)
cause of action. Whether he can make a successful case
for a violation of Labor Law § 240 (1) has yet to be
demonstrated since Supreme Court denied plaintiff's mo-
tion for summary judgment. Because plaintiff's strict li-
ability verdict at the first trial was based upon a finding
of a violation of the requirements of a different statute--
Labor Law § 202--we cannot let that verdict stand as a
substitute for a finding of strict liability under Labor
Law § 240 (1). Moreover, the jury finding at the second
trial that defendant's negligence was not a proximate
cause of plaintiff's injuries has no estoppel effect upon
remittal since the Labor Law § 240 (1) theory of liability
involves different statutory duties and possibilities of
causation that the previous juries did not consider. Thus
the case must be remitted for further proceedings.
II
As to the Labor Law § 202 claim, the Appellate Di-
vision was correct in holding that comparative negli-
gence principles must be applied to plaintiff's culpable
conduct. As with Labor Law § 241 (6), [HN6] statutory
causes of action predicated upon violations of adminis-
trative regulations do not give rise to strict liability (see,
Long v Forest-Fehlhaber, 55 NY2d 154 [1982]).
For some time before it was amended in 1970,
Labor Law § 202 required that owners, lessees and oth-
ers responsible for public buildings install and maintain
anchors on all windows. 1 This mandate was removed in
1970 and replaced by language [*453] that referred ex-
clusively to the requirements of the Board of Standards
and Appeals (L 1970, ch 822). 2 Thus, whereas [***495]
[**1140] the absence or inadequacy of anchors may in

the past have constituted a direct violation of a specific
requirement contained in the statute, after 1970 any par-
ticular safety standard required reference to the Industrial
Code.
1 Labor Law § 202 formerly stated that the
"owner, lessee, agent and manager of every pub-
lic building where the windows are cleaned from
the outside shall install and maintain anchors on
all windows of such building or provide other
safe means for the cleaning of the windows of
such building as may be required and approved
by the board of standards and appeals" (L 1955,
ch 379).
2 Labor Law § 202 [HN7] currently states that
the "owner, lessee, agent and manager of every
public building and every contractor involved
shall provide such safe means for the cleaning of
the windows and of exterior surfaces of such
building as may be required and approved by the
board of standards and appeals" (L 1970, ch 822).
We have held that a violation of a regulation or or-
dinance is only some evidence of negligence (see, Schu-
mer v Caplin, 241 NY 346, 351 [1925]; Teller v Prospect
Hgts. Hosp., 280 NY 456, 460 [1939]; see also, Elliott v
City of New York, 95 NY2d 730 [2001]). As we noted in
Long, the rule imposing strict liability only when there
has been a violation of a statute is "reinforced by the
principle, long and firmly established in New York, that
[HN8] the violation of a rule of an administrative agency
or of an ordinance of a local government, lacking the
force and effect of a substantive legislative enactment, is
merely some evidence which the jury may consider on
the question of defendant's negligence" (55 NY2d at 160
[citations and internal quotations omitted]). Thus our
cases determining whether a particular rule violation res-
ults in a finding of negligence per se or is merely some
evidence of negligence are also relevant to determining
when such violations result in strict liability versus com-
parative negligence.
In Schumer v Caplin (241 NY 346 [1925]), a case
that predated Labor Law § 202, plaintiff window cleaner
sought to hold defendant property owner liable for the
absence of anchors as required by the Industrial Code.
We observed that the "violation of a statute under certain
circumstances may of itself establish negligence. Not so,
however, with a rule or ordinance." (241 NY at 351.)
Likewise, in Teller v Prospect Hgts. Hosp. (280 NY 456
[1939]), a case involving a version of Labor Law § 202
quite similar to the current statute, 3 plaintiff window
cleaner sought to establish defendant's negligence
through an alleged violation of the statute. We rejected
the argument, [*454] holding that the absence of an-
chors violated the requirements of the Industrial Code, to
Page 14
which the statute referred, not the statute itself which
contained no mention of anchors.
"The statute does not in terms provide that anchors
shall be attached to the windows of the building nor does
it provide any particular device or contrivance that shall
be provided to make it safe for the window washer to
clean the window from the outside. We are required to
look to the Industrial Code * * * to learn what rules of
the Industrial Board are applicable, what means have
been required by the rules of the Industrial Board to be
furnished and what devices have been or may be ap-
proved for the safety of the person cleaning windows. * *
*
"Violation of a rule of the Industrial Board, however,
constitutes merely some evidence which the jury may
consider on the question of defendant's negligence, along
with other evidence in the case which bears on that sub-
ject" (Teller, [***496] [**1141] 280 NY at 459-461
[citations omitted]).
That distinction is material. As we explained in Schu-
mer:
"[HN9] The Constitution of the State commits to the
Legislature alone the power to enact a statute. [HN10] It
can give to or confer upon a commission, officer, board
or municipality the power to make rules and ordinances
governing the administration of their respective affairs.
* * * Under [Labor Law] sections 52-a and 52-b, any
rule adopted by the Commission may be suspended,
modified or varied, depending upon conditions. This can-
not be done with a statute. A constitutional statute, once
passed, cannot be changed or varied according to the
whim or caprice of any officer, board or individual. It re-
mains fixed until repealed or amended by the Legis-
lature" (Schumer, 241 NY at 351).
3 That version of Labor Law § 202 required
owners and others to "provide, equip and main-
tain approved safety devices on all windows
[and] * * * shall not require, permit, suffer or al-
low any window in such building to be cleaned
from the outside unless means are provided to en-
able such work to be done in a safe manner in
conformity with the requirements of this chapter
and the rules of the industrial board" (L 1937, ch
84, § 2).
Thus, under the prior, 1942, version of Labor Law §
202, strict liability could result from the absence or inad-
equacy of anchors because that was an explicit require-
ment of the [*455] statute. In addition, to the extent
that the 1937 version of section 202 required that ap-
proved safety devices be supplied and maintained, and
that no window cleaning be done unless means were
 Page 15

provided to do such work safely, proof that no safety cified in the statute or in the Industrial Code,
devices at all were provided could form the basis for were provided by the owner or by anyone else"
strict liability (as well as a finding of negligence per se). (291 NY at 23 [emphasis added]).
That is so because--unlike the current version of the stat-
Thus, we agree with the Appellate Division that
ute--the absence of any safety devices was a violation of
Labor Law § 202 is a comparative negligence, not a strict
the statute itself (see, Teller, 280 NY at 460; Pollard v
liability, statute. This cause of action having been prop-
Trivia Bldg. Corp., 291 NY 19 [1943]).
erly tried to conclusion under principles of comparative
Contrary to plaintiff's assertion, Koenig v Patrick negligence at the second trial need not be tried again.
Constr. Corp. (298 NY 313, 318 [1948]) did not hold that
Accordingly, the judgment appealed from and orders
Labor Law § 202 was a strict liability statute. 4 There, a
of the Appellate Division brought up for review should
violation of the statute was established by the total ab-
be modified, without costs, by reinstating the Labor Law
sence of devices, not the absence or inadequacy of a
§ 240 (1) cause of action only and remitting to Supreme
device described only in the Industrial Code.
Court for further proceedings as to that cause of action
and, as so modified, affirmed.
4 In making the observation that contributory
negligence would not be a defense to a Labor Chief Judge Kaye and Judges Smith, Levine, Wesley
Law § 202 cause of action, Koenig cited to Pol- and Rosenblatt concur; Judge Graffeo taking no part.
lard v Trivia Bldg. Corp. (291 NY 19 [1943]). In
Judgment appealed from and orders of the Appellate
Pollard, however, all parties "stipulated that no
Division brought up for review modified, etc.
safety devices of any kind, whether or not spe-

3 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

Mark G. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Ad-

ministrator of the New York City Human Resources Administration and as Commis-
sioner of the New York City Department of Social Services, et al., Respondents-Ap-
pellants. Martin A. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually
and as Administrator of the New York City Human Resources Administration and as
Commissioner of the New York City Department of Social Services, et al., Respond-
ents-Appellants. Dakinya B. et al., Appellants-Respondents, v. Barbara J. Sabol, In-
dividually and as Administrator of the New York City Human Resources Adminis-
tration and as Commissioner of the New York City Department of Social Services, et
al., Respondents-Appellants. Frances F. et al., Appellants-Respondents, v. Barbara
J. Sabol, Individually and as Administrator of the New York City Human Resources
Administration and as Commissioner of the New York City Department of Social
Services, et al., Respondents-Appellants.

No. 96

COURT OF APPEALS OF NEW YORK

93 N.Y.2d 710; 717 N.E.2d 1067; 695 N.Y.S.2d 730; 1999 N.Y. LEXIS 2106

April 28, 1999, Argued

August 31, 1999, Decided

PRIOR HISTORY: Cross appeals, by permission of the Appellate Division of the Supreme Court in the First

Judicial Department, from an order of that Court, entered
June 23, 1998, which (1) affirmed an order of the Su-
preme Court (Walter B. Tolub, J.; opn 169 Misc 2d 242),
entered June 3, 1996 in New York County, granting a
motion by defendants for leave to amend their answer to
the intervening complaint of the Bronx Public Adminis-
trator to assert the affirmative defense of the Statute of
Limitations and for summary judgment thereon dismiss-
ing all causes of action of the Public Administrator on
behalf of the estate of Alan G., to the extent of dismiss-
ing, with prejudice, the first, third, fifth and seventh
causes of action sounding in wrongful death, (2) affirmed
an order of said Supreme Court, entered June 28, 1996 in
New York County, granting a motion by defendants to
reargue the court's decision, dated May 17, 1996, which
had held that the personal injury claims asserted by the
estate of Alan G. related back to the commencement of
the action by his siblings and were timely interposed and,
upon reargument, modified its decision to reflect that the
estate's personal injury claims relate back to April 1991
when the G. children moved to intervene in the pending
actions and were timely interposed, (3) modified, on the
law, and, as modified, affirmed an order of said Supreme
Court, entered July 3, 1996, in the G. family action,
granting a motion by defendants for partial summary
judgment and dismissing, with prejudice, the claims in
the second amended complaint, the intervening com-
plaint of Mark, Kevin, Steven and Susan G., and the in-
tervening complaint of the Bronx Public Administrator
on behalf of the estate of Alan G., except the eighteenth
cause of action in which Mark, Kevin, Steven and Susan
G. allege violations of Social Services Law § 409 and §
411 owing to defendants' alleged failure to promulgate a
plan as mandated by the Social Services Law, the twenti-
eth and twenty-first causes of action in which plaintiffs
Mark, Kevin, Steven and Susan G. allege violations of
article XVII of the State Constitution based on defend-
ants' alleged failure to promulgate a plan mandated by
the Social Services Law, and the first, second, third and
fourth causes of action in the intervening complaint of
the Bronx Public Administrator in which he alleges viol-
ations of Social Services Law § 409 and § 411 et seq.,
and article XVII of the State Constitution based solely on
defendants' alleged failure to promulgate a plan, conduct
investigations, and provide services in the time and man-
ner mandated by the Social Services Law; the modifica-
tion consisted of further granting defendants' motion and
dismissing plaintiffs' claims insofar as they allege viola-
tions of Social Services Law § 409 and article XVII of
the State Constitution, (4) modified, on the law, and, as
modified, affirmed an order of said Supreme Court,
entered July 11, 1996 in New York County, granting a
motion by defendants for partial summary judgment and
dismissing, with prejudice, the claims in the second
amended complaint, except the claim in the tenth cause
Page 16
of action in which plaintiffs Martin, Bill, Laura and Vin-
cent A. allege violations of Social Services Law § 409
and article XVII of the State Constitution based upon de-
fendants' alleged failure to promulgate a plan mandated
by the Social Services Law; the modification consisted
of further granting defendants' motion and dismissing
plaintiffs' claims under the tenth cause of action, insofar
as they allege violations of Social Services Law § 409
and article XVII of the State Constitution, (5) modified,
on the law, and, as modified, affirmed an order of said
Supreme Court, entered July 9, 1996 in New York
County, granting a motion by defendants for partial sum-
mary judgment and dismissing, with prejudice, the B.
family's claims in the second amended complaint, except
the claims alleging violations of Social Services Law §
409 and article XVII of the State Constitution based on
defendants' alleged failure to promulgate a plan man-
dated by the Social Services Law; the modification con-
sisted of further granting defendant's motion and dis-
missing plaintiffs' claims under the tenth and fourteenth
causes of action, insofar as they allege violations of So-
cial Services Law § 409 and article XVII of the State
Constitution, and (6) modified, on the law, and, as modi-
fied, affirmed an order of said Supreme Court, entered
July 9, 1996 in New York County, granting defendants'
motion for partial summary judgment and dismissing,
with prejudice, the claims in the second amended com-
plaint, except the seventeenth cause of action in which
Frances and John F. allege violations of Social Services
Law § 409 based upon defendants' alleged failure to pro-
mulgate a plan mandated by the Social Services Law; the
modification consisted of further granting defendants'
motion and dismissing plaintiffs' claims insofar as they
allege violations of Social Services Law § 409 et seq.
The following question was certified by the Appellate
Division: "Was the order of this Court, which affirmed
the orders of the Supreme Court, entered on June 3 and
June 28, 1996 and which modified the orders of said
court entered on July 3, July 9, and July 11, 1996, prop-
erly made?"
Mark G. v Sabol, 247 AD2d 15, modified. s. Corp.,
250 AD2d 797, modified. affirmed.
Martin A. v Sabol, 247 AD2d 15, modified.
Dakinya B. v Sabol, 247 AD2d 15, modified.
Frances F. v Sabol, 247 AD2d 15, modified.
DISPOSITION: Order modified, without costs, by
dismissing the remaining causes of action and, as so
modified, affirmed. Certified question answered in the
negative.
CASE SUMMARY:

PROCEDURAL POSTURE: Appeal from the order of
the Appellate Division (New York), which on defendants'
motion for summary judgment, dismissed some of
plaintiffs' causes of action for money damages as a result
of abuse or neglect that plaintiffs suffered in their homes
or foster homes.
OVERVIEW: Plaintiffs are children who asserted that
they were dependent upon the child welfare system and
that they suffered abuse or neglect in their homes or
foster homes. Plaintiffs sought money damages from de-
fendants in multiple causes of action under a variety of
theories. Plaintiffs withdrew their claims against the
State, along with the class certification and injunctive re-
lief. Defendants filed a motion for summary judgment
which was treated by the trial court as a motion to dis-
miss which was partially granted. On appeal the court
modified the order by dismissing the remaining causes of
action for substantive due process and common law torts
with leave to amend, and as modified, affirmed, because
plaintiffs failed to sufficiently plead a cause of action.
OUTCOME: Order modified by dismissing plaintiffs re-
maining causes of action for substantive due process and
common law torts with leave to amend, and as modified,
affirmed, because plaintiffs failed to sufficiently plead a
cause of action.
CORE TERMS: money damages, foster care, social ser-
vices, common-law, right of action, preventive, child
welfare, causes of action, entitlement, child abuse,
pleaded, placement, failures to provide, funding, foster,
child welfare, foster homes, foster care, provide services,
enforcement mechanisms, protective services, deliberate
indifference, maltreatment, monitoring, prisoner, replead,
child protective service, provides immunity, process
right, professional judgment
LexisNexis(R) Headnotes
Civil Procedure > Remedies > Damages > Monetary
Damages
Governments > Legislation > Statutory Remedies &
Rights
[HN1] In determining whether a private right of action
for money damages exists for violation of a New York
State statute, the courts have established the following
three-part test: (1) whether the plaintiff is one of the class
for whose particular benefit the statute was enacted; (2)
whether recognition of a private right of action would
promote the legislative purpose; and (3) whether creation
of such a right would be consistent with the legislative
Page 17
scheme.
Governments > Legislation > Statutory Remedies &
Rights
[HN2] Any person, official, or institution participating in
good faith in the providing of a service pursuant to N.Y.
Soc. Serv. Law § 424, the making of a report, the taking
of photographs, or the removal or keeping of a child pur-
suant to this title shall have immunity from any liability,
civil or criminal, that might otherwise result by reason of
such actions. N.Y. Soc. Serv. Law § 419.
Constitutional Law > Substantive Due Process > Gen-
eral Overview
[HN3] Substantive due process implicates the essence of
state action rather than its modalities.
Constitutional Law > Bill of Rights > Fundamental
Rights > Procedural Due Process > General Overview
Constitutional Law > Substantive Due Process > Gen-
eral Overview
[HN4] Procedural due process differs from substantive
due process by focusing not on what a person has been
deprived of, but rather on how the deprivation was ac-
complished.
Constitutional Law > Bill of Rights > Fundamental
Rights > Procedural Due Process > General Overview
[HN5] No amount of procedure can justify the wrongful
denial of an entitlement. Moreover, merely asserting a
denial of a statutory entitlement does not make out a
claim of procedural due process.
Civil Rights Law > Prisoner Rights > Medical Treat-
ment
Constitutional Law > Bill of Rights > Fundamental
Rights > Criminal Process > Cruel & Unusual Punish-
ment
Criminal Law & Procedure > Sentencing > Cruel &
Unusual Punishment
[HN6] The State owes a duty to those whom it has
placed in its custody, so that when a prisoner demon-
strates that the State exhibited deliberate indifference to
the prisoner's medical needs, the Constitution's guaran-
tees against cruel and unusual punishment are violated.
Constitutional Law > Substantive Due Process > Gen-
eral Overview
Criminal Law & Procedure > Postconviction Proceed-

ings > Imprisonment
[HN7] People who are in the State's custody are depend-
ent on the government for their basic needs.
Constitutional Law > Substantive Due Process > Gen-
eral Overview
Public Health & Welfare Law > Social Services > Insti-
tutionalized Individuals > Confinement Conditions
[HN8] A person involuntarily committed and thereby de-
pendent on the government for basic needs was entitled
to more considerate treatment and conditions of confine-
ment than criminals whose conditions of confinement are
designed to punish. As to persons so confined the State
owes a duty to accord such services as are necessary to
insure their reasonable safety. In such a setting an action-
able claim is made out if and when a decision by the
State through its professional administrators with respect
to such services is such a substantial departure from ac-
cepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not
base the decision on such a judgment.
HEADNOTES
Social Services - Preventive Services - Private Right
of Action for Money Damages
1. In four similar actions against New York City
child welfare officials in which plaintiffs assert that they
were dependent on defendants' child welfare system and
that they suffered abuse or neglect in their homes or
foster homes, plaintiffs have no claims for money dam-
ages under title 4 of article 6 of the Social Services Law
("Preventive Services for Children and Their Families").
While plaintiffs are members of the class for whom title
4 was enacted, and a private right of action for money
damages could arguably promote the title's goals, recog-
nition of such a private right of action would not be con-
sistent with the legislative scheme, since the legislative
approach centers on improved monitoring and on penal-
izing local social services districts with a loss of State re-
imbursement of funds for their failure to provide services
or meet the standards mandated by the statute. The Le-
gislature specifically considered and expressly provided
for enforcement mechanisms, and the provisions of title
4 were enacted as the "comprehensive" means by which
the statute accomplishes its objectives. Accordingly, it
would be inappropriate to find another enforcement
mechanism beyond the statute's already "comprehensive"
scheme. If the statute were opened to private causes of
action for money damages, the legislative funding
scheme would be affected, and allocations of money and
government resources would be rechanneled, no longer
to be based on administrative judgments, but driven, at
least in part, by tort law principles. Inasmuch as the stat-
Page 18
ute gives no hint of any private enforcement remedy for
money damages, one should not be imputed.
Social Services - Child Protective Services - Private
Right of Action for Money Damages
2. In four similar actions against New York City
child welfare officials in which plaintiffs assert that they
were dependent on defendants' child welfare system and
that they suffered abuse or neglect in their homes or
foster homes, plaintiffs have no claims for money dam-
ages under title 6 of article 6 of the Social Services Law
("Child Protective Services"). Although plaintiffs assert
an implied private right of action for money damages for
defendant's alleged violations of Social Services Law §
424, which deals with the reporting of child abuse, the
legislative history of Social Services Law § 419, which
provides immunity from liability for those making re-
ports of child abuse, reveals that it was intended to
provide immunity only with respect to civil or criminal
liability that would otherwise result from acts taken by
persons, officials or institutions in a good faith effort to
comply with specific provisions of the Social Services
Law. There is no indication that section 419 was intended
to apply to failures to provide the services required by
the Social Services Law. Indeed, the Legislature specific-
ally created a private right of action in the very next sec-
tion for the willful failure of persons, officials or institu-
tions required by title 6 to report cases of "suspected
child abuse or maltreatment," and if the Legislature had
intended for liability to attach for failures to comply with
other provisions of title 6, it would likely have arranged
for it as well. The Legislature's subsequent amendments
to the enforcement scheme of title 6 specifically concen-
trated on the statutory scheme's enforcement provisions,
which, except for the unique motivations that underlie
Social Services Law § 420, have never included private
rights of action for money damages.
Social Services - Foster Care - Procedural Due Pro-
cess - Failure to Provide Services
3. In four similar actions against New York City
child welfare officials in which plaintiffs assert that when
they were placed in foster care they remained within the
ambit of defendants' custodial responsibility, that defend-
ants were obligated to take supervisory and interventive
steps to keep them free from harm, and that while they
were in foster care defendants failed to accord them the
protective services to which they were entitled under
titles 4 and 6 of the Social Services Law, plaintiffs have
not adequately pleaded a violation of procedural due pro-
cess. The classic procedural due process case arises
when the government acts to deny or curtail someone's
life, liberty or property interest and defends its action by
asserting that it employed fair procedures in furtherance
of a legitimate governmental objective; however, that is

not the case at bar. Deprivation or denial is not the gov-
ernmental goal: there has been no attempt by the govern-
ment to deprive the plaintiffs of a right that carries with it
a predeprivation procedure. The government may not
decide to deny a foster child's safety or entitlements and
seek to justify the denial by showing that its processes or
procedures were fair. No amount of procedure can justi-
fy the wrongful denial of an entitlement. Moreover,
merely asserting a denial of a statutory entitlement does
not make out a claim of procedural due process, since
process is not an end in itself.
Social Services - Foster Care - Substantive Due Pro-
cess - Failure to Provide Services
4. In four actions against child welfare officials in
which plaintiffs assert that when they were placed in
foster care they remained within defendants' custodial re-
sponsibility, that defendants were obligated to take steps
to keep them free from harm, and that while they were in
foster care defendants failed to accord them the protect-
ive services to which they were entitled under the Social
Services Law, plaintiffs have not adequately pleaded a
violation of substantive due process. Although the com-
plaints are abundant with allegations relating to defend-
ants' failure to provide plaintiffs with family social ser-
vices, the complaints did not meet either the "deliberate
indifference" standard or the "professional judgment"
standard, applicable to a narrow set of constitutional enti-
tlements to basic necessities, which arose in recognition
of the total dependence in which the State itself had
placed certain institutionalized persons (prisoners or the
mentally handicapped). There is no support for any sub-
stantive due process right to monetary redress for de-
fendants' alleged failure to provide the array of social
services claimed by plaintiffs. The crux of the com-
plaints is defendants' alleged failure to provide services
to plaintiffs' families in order to avoid foster care place-
ment and keep them at home in a safe environment, or to
minimize their stay in foster care through family rehabil-
itation services, thereby expediting their return to a safe
home environment. However, any substantive due pro-
cess rights of foster children cannot be extended to enti-
tlement to preventive and protective services before
placement in care, or to family social services during
placement. The allegations of harm or denial of needed
medical or other services to children while in foster care
are very much incidental to the primary complaints and
since plaintiffs never articulated a violation of the "pro-
fessional judgment" standard of care, an independent
claim for money damages for injuries in foster care based
on such omissions cannot be implied.
Social Services - Preventive Services - Private Right
of Action for Money Damages - Common-Law Tort
Claims
Page 19
5. In four similar actions against New York City
child welfare officials in which plaintiffs assert that they
were dependent on defendants' child welfare system and
that they suffered abuse or neglect in their homes or
foster homes, no viable common-law claim has been
pleaded. Although the parties have addressed the viabil-
ity of so-called common-law tort causes of action, those
causes of action were not pleaded separately, but were
intertwined with a plethora of other causes of action and
theories. Indeed, the complaints do not identify any
common-law duties claimed to be owed plaintiffs--as
distinguished from the alleged breach of other govern-
mental responsibilities to furnish protective and prevent-
ive services, which forms the primary bases for these ac-
tions. While pleadings should be construed liberally, it
would be improvident to attempt to isolate and identify
any common-law claims and theories asserted on
plaintiffs' behalf, and while the possibility of any such
common-law claims should not be ruled out as a matter
of law, it is noted that no viable common-law claim has
been pleaded. Accordingly, plaintiffs are granted leave to
replead. Moreover, considering that there has never been
occasion to deal with the contours of a substantive com-
ponent of the Due Process Clause in the context of a
child welfare case, leave to replead such claims is gran-
ted.
COUNSEL: Debevoise & Plimpton, New York City
(Robert Goodman, David W. Rivkin, Leigh R. Schachter
and Christopher G. Karagheuzoff of counsel), Mark G.
Peters, Rachel H. Park, Shirim Nothenberg and Marcia
Robinson Lowry for appellants-respondents. I. Plaintiffs
may sue to recover damages caused by defendants' viola-
tions of the State's Social Services Law. ( Martin A. v
Gross, 153 AD2d 812; Grant v Cuomo, 130 AD2d 154,
73 NY2d 820; Franklin v Gwinnett County Pub. Schools,
503 US 60; Brown v State of New York, 89 NY2d 172;
County of Broome v State of New York, 129 Misc 2d 914;
Sheehy v Big Flats Community Day, 73 NY2d 629; Burns
Jackson Miller Summit & Spitzer v Lindner, 59 NY2d
314; Izzo v Manhattan Med. Group, 164 AD2d 13; Hox-
ie's Painting Co. v Cato-Meridian Cent. School Dist., 76
NY2d 207; Henry v Isaac, 214 AD2d 188.) II. Plaintiffs,
while in defendants' custody, have a substantive due pro-
cess right to be free from harm. Based upon the facts
presented to the Court below, a jury could easily determ-
ine that defendants violated this due process right. (
Umlauf v County of Chautauqua, 132 AD2d 958, 70
NY2d 1002; Figueroa v Orange County, 158 Misc 2d
452; Doe v New York City Dept. of Social Servs., 709
F2d 782; Marisol A. v Giuliani, 929 F Supp 662; Matter
of H.--M. Children, 154 Misc 2d 438, revd on other
grounds sub nom. Matter of Shinice H., 194 AD2d 444;
Yvonne L. v New Mexico Dept. of Human Servs., 959
F2d 883; Norfleet v Arkansas Dept. of Human Servs.,

989 F2d 289; Camp v Gregory, 67 F3d 1286, 517 US
1244; K.H. v Morgan, 914 F2d 846; Estelle v Gamble,
429 US 97.) III. State law mandates the provision of cer-
tain services upon a finding that children are at risk of
abuse or at risk of entering foster care. Since defendants
made such findings, they violated plaintiffs' procedural
due process rights by failing to then provide the man-
dated services. ( Board of Regents v Roth, 408 US 564;
Town of Orangetown v Magee, 88 NY2d 41; Matter of
Daxor Corp. v State of New York Dept. of Health, 90
NY2d 89; Matter of Doe v Coughlin, 71 NY2d 48, 488
US 879; Allerton Coops Tenants Assn. v Biderman, 189
AD2d 249; Marisol A. v Giuliani, 929 F Supp 662;
Taylor v Ledbetter, 818 F2d 791; Kraemer v Heckler, 737
F2d 214; Mayer v Wing, 922 F Supp 902; Grant v
Cuomo, 73 NY2d 820.) IV. Plaintiffs have a private right
of action for defendants' admitted violations of the Fed-
eral child welfare laws. ( Suter v Artist M., 503 US 347;
Wilder v Virginia Hosp. Assn., 496 US 498; Wright v
Roanoke Redevelopment & Hous. Auth., 479 US 418;
Winston v Children & Youth Servs., 948 F2d 1380, 504
US 956; Timmy S. v Stumbo, 916 F2d 312; L. J. v Mass-
inga, 838 F2d 118, 488 US 1018; Lynch v Dukakis, 719
F2d 504; Marisol A. v Giuliani, 929 F Supp 662; Doe v
Chiles, 136 F3d 709; Laird v Ramirez, 884 F Supp
1265.) V. Plaintiffs had a "special relationship" with de-
fendants and may recover for defendants' negligent fail-
ure to provide for their safety. ( Sorichetti v City of New
York, 65 NY2d 461; Florence v Goldberg, 44 NY2d 189;
Boland v State of New York, 218 AD2d 235; Raucci v
Town of Rotterdam, 902 F2d 1050; Cuffy v City of New
York, 69 NY2d 255; De Long v County of Erie, 60 NY2d
296; Martin A. v Gross, 153 AD2d 812.)
Michael D. Hess, Corporation Counsel of New York
City (Fay Ng and Pamela Seider Dolgow of counsel), for
respondents-appellants. I. The Court below properly
held that plaintiffs do not have a private right of action to
seek damages for the City's alleged failure to provide
preventive and protective services under title 4 and title 6
of article 6 of the New York Social Services Law. ( Shee-
hy v Big Flats Community Day, 73 NY2d 629; Burns
Jackson Miller Summit & Spitzer v Lindner, 59 NY2d
314; Carrier v Salvation Army, 88 NY2d 298; Henry v
Isaac, 214 AD2d 188; Doe v Roe, 190 AD2d 463; Izzo v
Manhattan Med. Group, 164 AD2d 13; Grant v Cuomo,
73 NY2d 820; Klostermann v Cuomo, 61 NY2d 525;
Varela v Investors Ins. Holding Corp., 81 NY2d 958; Van
Emrick v Chemung County Dept. of Social Servs., 220
AD2d 952.) II. The Court below properly found that the
City defendants did not have a special duty to protect
plaintiffs from abuse by their parents or other third
parties while they were not in foster care. ( Cuffy v City
of New York, 69 NY2d 255; Mastroianni v County of Suf-
folk, 91 NY2d 198; Boland v State of New York, 218
Page 20
AD2d 235.) III. The Court below properly dismissed
plaintiffs' claims under the New York Social Services
Law. Further, plaintiffs' claims alleging that defendants
failed to protect them from parental abuse must fail be-
cause plaintiffs have not established the existence of a
special relationship. Assuming, arguendo, that plaintiffs
could pursue their claims under the Social Services Law
or under common-law tort principles, defendants are im-
mune from liability for any injuries resulting from ac-
tions taken in the exercise of their discretion. ( Tango v
Tulevech, 61 NY2d 34; Mon v City of New York, 78 NY2d
309, 1124; Grant v Cuomo, 130 AD2d 154.) IV.
Plaintiffs' 42 USC § 1983 claims alleging violations of
their substantive and procedural due process rights were
properly dismissed. ( Lowrance v Achtyl, 20 F3d 529;
DeShaney v Winnebago County Dept. of Social Servs.,
489 US 189; Baby Neal v Casey, 821 F Supp 320; K.H. v
Morgan, 914 F2d 846; Del A. v Roemer, 777 F Supp
1297; B.H. v Johnson, 715 F Supp 1387; Eric L. v Bird,
848 F Supp 303; Youngberg v Romeo, 457 US 307; Child
v Beame, 412 F Supp 593; Black v Beame, 419 F Supp
599, 550 F2d 815.) V. The Court below properly dis-
missed plaintiffs' claims brought pursuant to 42 USC §
1983 alleging violations of section 5106 of the Child Ab-
use Prevention and Treatment Act (42 USC § 5101 et
seq.) and section 671 (a) (16), and section 675 (5) of the
Adoption Assistance Act (42 USC § 671 et seq.). ( Ver-
mont Dept. of Social & Rehabilitation Servs. v Bowen,
798 F2d 57, 479 US 1064; Wilder v Virginia Hosp. Assn.,
496 US 498; Golden State Tr. Corp. v City of Los
Angeles, 493 US 103; Wright v City of Roanoke Redevel-
opment & Hous. Auth., 479 US 418; Suter v Artist M.,
503 US 347; Eric L. v Bird, 848 F Supp 303; LaShawn A.
v Barry, 69 F3d 556, 74 F3d 303, 87 F3d 1389; Harris v
James, 127 F3d 993; Doe v District of Columbia, 93 F3d
861.) VI. Applying the foregoing legal principles to the
pleadings and the undisputed facts in this case, this Court
should affirm so much of the Appellate Division order as
dismissed plaintiffs' claims. On the City's cross appeal,
this Court should dismiss all remaining claims and dis-
miss the complaints in their entirety. ( Hambsch v New
York City Tr. Auth., 63 NY2d 723; Mon v City of New
York, 78 NY2d 309; Boland v State of New York, 176
Misc 2d 625; Suter v Artist M., 503 US 347.) VII. Any
claims of the Bronx Public Administrator, asserted on be-
half of the estate of Alan G., which are not dismissed for
the reasons stated in points I through VI should be dis-
missed on the City defendants' cross appeal as time-
barred. ( Owens v Okure, 488 US 235; Odell v
Dalrymple, 156 AD2d 967; Clausell v Ullman, 141
AD2d 690; Laudico v Sears, Roebuck & Co., 125 AD2d
960; Insurance Co. v Hellmer, 212 AD2d 665; Matter of
Greater N. Y. Health Care Facilities Assn. v DeBuono,
91 NY2d 716; Key Intl. Mfg. v Morse/Diesel, Inc., 142
AD2d 448; MTB Banking Corp. v Consolidated Edison

Co., 197 AD2d 479; State of New York v General Elec.
Co., 199 AD2d 595; Fineshewitz v East Riv. Sav. Bank,
187 Misc 874.)
JUDGES: Chief Judge Kaye and Judges Bellacosa, Lev-
ine, Ciparick and Wesley concur with Judge Rosenblatt;
Judge Smith concurs in result in a separate opinion.
OPINION BY: Rosenblatt
OPINION
[*718] [**1069] [***732] Rosenblatt, J.
This appeal involves actions against New York City
child welfare officials. Plaintiffs are 11 children (and the
estate of a twelfth) from four families. They assert that
they were dependent upon defendants' child welfare sys-
tem and that they suffered abuse or neglect in their
homes or foster homes. These actions were originally
part of a proposed class action suit seeking injunctive re-
lief and damages. Plaintiffs, however, withdrew their
claims against the State, along with their request for class
certification and injunctive relief. In seeking to hold de-
fendants liable under the remaining claims, plaintiffs in a
series of complaints have asserted multiple causes of ac-
tion under a variety of theories.
[**1070] [***733] At issue before us is the resol-
ution of defendants' motions, denominated as motions for
summary judgment. They are more appropriately char-
acterized as motions to dismiss the pleadings for failure
to state a cause of action. Despite contrary nomen-
clature, the courts below in actuality addressed plaintiffs'
allegations in that context, as do we (see, Guggenheimer
v Ginzburg, 43 NY2d 268, 274-275).
New York State Social Services Law
Plaintiffs make claims for money damages under
two distinct titles of this law: title 4 of article 6 ("Pre-
ventive Services for Children and Their Families") and
title 6 of article 6 ("Child Protective Services").
[*719] [HN1] In determining whether a private
right of action for money damages exists for violation of
a New York State statute, this Court has established the
following three-part test:
"(1) whether the plaintiff is one of the class for
whose particular benefit the statute was enacted;
"(2) whether recognition of a private right of action
would promote the legislative purpose; and
"(3) whether creation of such a right would be con-
sistent with the legislative scheme" ( Sheehy v Big Flats
Community Day, 73 NY2d 629, 633).
Title 4 of Article 6 of the Social Services Law
Page 21
As a part of the Child Welfare Reform Act of 1979
(L 1979, chs 610, 611), the Legislature enacted this pro-
vision. Its purpose is to:
"delineate and implement a State policy of perman-
ent homes for children who are currently in foster care or
at risk of entering foster care by
--placing increased emphasis on preventive services
designed to maintain family relationships rather than re-
sponding to children and families in trouble only by re-
moving the child from the family;
--providing for increased monitoring of the foster
care system with safeguards against abuse and for penal-
ties where violations are found to ensure that the needs of
children in foster care are appropriately met; and,
--making necessary changes in adoptive services to
provide appropriate homes when adoption is needed"
(Governor's Mem, 1979 McKinney's Session Laws of
NY, at 1814 [emphasis added]).
The Legislature declared its intention to implement
title 4 by providing added funding for preventive ser-
vices (see, L 1979, ch 610, § 1). It also amended related
titles to establish utilization review standards for in-
creased monitoring of children to assure that title 4's pre-
ventive services are carried out (see, L 1979, ch 611, §
7). Furthermore, it imposed fiscal penalties on noncom-
pliant agencies (see, L 1979, ch 610, §§ 7, 9).
The history of title 4 establishes that the Legislature
intended to create financial incentives for local social
services districts to provide preventive services. As Sen-
ator Joseph [*720] Pisani stated in his sponsoring
memorandum: "This bill addresses these problems in a
comprehensive manner. ... Furthermore, the bill holds
districts accountable for meeting these standards or suf-
fer loss of reimbursement" (1979 NY Legis Ann, at 353).
Similarly, Assemblyman Howard Lasher in his memor-
andum in support of the bill stated:
"The purpose of this bill is to restructure the finan-
cing and management of child welfare services in New
York State by establishing a new funding mechanism for
services which are alternatives to foster care, strengthen-
ing accountability mechanisms for foster care, develop-
ment and use of standardized assessment and placement
tools, increased State monitoring of the necessity and ap-
propriateness of foster placement and limits on the avail-
ability of foster care [**1071] [***734] reimburse-
ment" (1979 NY Legis Ann, at 355).
We agree with plaintiffs that they are members of
the class for whom title 4 was enacted, and that a private
right of action for money damages could arguably pro-
mote the title's goals. However, the third factor--the one
this Court has deemed the most critical (see, Carrier v

Salvation Army, 88 NY2d 298)--is not satisfied. Recogni-
tion of such a private right of action under title 4 would
not be consistent with the legislative scheme. The legis-
lative approach centered on improved monitoring and on
penalizing local social services districts with a loss of
State reimbursement of funds for their failure to provide
services or meet the standards mandated by the statute.
The Legislature specifically considered and expressly
provided for enforcement mechanisms. As Senator Pis-
ani's sponsoring memorandum makes clear, the provi-
sions of title 4 were enacted as the "comprehensive"
means by which the statute accomplishes its objectives.
Given this background, it would be inappropriate for us
to find another enforcement mechanism beyond the stat-
ute's already "comprehensive" scheme.
The statute's goals are advanced by legislative action
in providing and allocating appropriate funding. If the
statute were opened to private causes of action for money
damages the funding scheme would be affected, perhaps
significantly. Allocations of money and government re-
sources would be rechanneled, no longer to be based on
administrative judgments, but driven, at least in part, by
tort law principles. The Legislature has the authority to
determine whether opening the statute to [*721] private
tort law enforcement would advance the objectives of
child and family welfare or skew the distribution of re-
sources. Considering that the statute gives no hint of any
private enforcement remedy for money damages, we will
not impute one to the lawmakers.
Title 6 of Article 6 of the Social Services Law
This enactment was one of several legislative initiat-
ives to counter the breakdown in the child protective sys-
tem that was brought to the Legislature's attention in the
late 1960s (Report of Assembly Select Comm on Child
Abuse, at ii [1972]). The purpose of title 6, as stated in
its preamble, is:
"to encourage more complete reporting of suspected
child abuse and maltreatment and to establish in each
county of the state a child protective service capable of
investigating such reports swiftly and competently and
capable of providing protection for the child or children
from further abuse or maltreatment and rehabilitative ser-
vices for the child or children and parents involved" (So-
cial Services Law § 411).
In seeking to encourage early reporting of child ab-
use, the Legislature determined that immunity from civil
and criminal liability was indispensable. Protection from
liability would remove "the fear of an unjust lawsuit for
attempting to help protect a child" (Report of Assembly
Select Comm on Child Abuse, at 33 [1972]; see also,
Budget Report on Bills, Bill Jacket, L 1973, ch 1039
["Requires designated persons to report suspected cases
Page 22
of child abuse or maltreatment immediately ... (and) per-
mits any person to make such a report and provides im-
munity for all acting in good faith."]).
Section 419, as it existed at the relevant time, con-
tained the following immunity provision:[HN2]
"Any person, official, or institution participating in
good faith in the providing of a service pursuant to sec-
tion [424 of the Social Services Law], the making of a re-
port, the taking of photographs, or the removal or keep-
ing of a child pursuant to this title shall have immunity
from any liability, civil or criminal, that might otherwise
result by reason of such actions" (emphasis added).
[**1072] [***735] Plaintiffs assert an implied
private right of action for money damages for defendants'
alleged violations of Social Services Law § 424. They
rely on the above-quoted immunity provision [*722] of
Social Services Law § 419 to support their contention
that such an action exists for a failure to comply with the
provisions of title 6, including Social Services Law §
424.
Section 419's legislative history, however, reveals
that it was intended to provide immunity only with re-
spect to civil or criminal liability that would otherwise
result from acts taken by persons, officials or institutions
in a good faith effort to comply with specific provisions
of the Social Services Law (see, Straton v Orange
County Dept. of Social Servs., 217 AD2d 576, 577;
Dagan v Brookdale Hosp. Med. Ctr., 202 AD2d 385).
There is no indication that section 419 was intended to
apply to failures to provide the services required by the
Social Services Law.
Indeed, the Legislature specifically created a private
right of action in the very next section. Social Services
Law § 420 provides for criminal and civil liability for the
willful failure of persons, officials or institutions required
by title 6 to report cases of "suspected child abuse or
maltreatment." If the Legislature had intended for liabil-
ity to attach for failures to comply with other provisions
of title 6, it would likely have arranged for it as well.
The enforcement mechanisms of title 6 have not es-
caped legislative review. In fact, the Legislature's sub-
sequent amendments to the enforcement scheme of title 6
evinced an emphasis on funding mechanisms and the de-
velopment of performance standards by the State Depart-
ment of Social Services (see, L 1988, ch 707; L 1995, ch
83, §§ 229, 231; L 1998, ch 58, pt C, § 87; see also,
Mem of State Executive Dept, 1988 McKinney's Session
Laws of NY, at 2138-2140). The Legislature specifically
concentrated on the statutory scheme's enforcement pro-
visions, which, except for the unique motivations that
underlie Social Services Law § 420, have never included
private rights of action for money damages. In sum, we
 Page 23

conclude that a private right of action for money dam- That is not the case before us.
ages cannot be fairly implied from title 6 of the Social
Here, deprivation or denial is not the governmental
Services Law (see, Sheehy v Big Flats Community Day,
goal. This case does not involve an attempt by the gov-
73 NY2d, at 633, supra).
ernment to deprive the plaintiffs of a right that carries
Plaintiffs' Due Process Claims with it a predeprivation procedure. The government may
not decide to deny a foster child's safety or entitlements
Plaintiffs assert that when they were placed in foster
and seek to justify the denial by showing that its pro-
care they remained within the ambit of the defendants'
cesses or procedures were fair. [HN5] No amount of
custodial responsibility, where defendants were obligated
procedure can justify the wrongful denial of an entitle-
to take supervisory and interventive steps to keep them
ment. Moreover, merely asserting a denial of a statutory
free from harm. They further allege that while they were
[*724] entitlement does not make out a claim of proced-
in foster care defendants failed to accord them the pro-
ural due process. As the United States Supreme Court
tective services to [*723] which they were entitled un-
held in Olim v Wakinekona, "[p]rocess is not an end in it-
der titles 4 and 6 of article 6 of the Social Services Law.
self" (461 US 238, 250; see also, Hewitt v Helms, 459
Based on these claims, plaintiffs contend that they have
US 460, 469). We conclude that plaintiffs have not ad-
been denied due process of law. Plaintiffs apparently do
equately pleaded a violation of procedural due process,
not include non-foster care children within this claim. 1
and that those causes of action should be dismissed.
1 See, DeShaney v Winnebago County Dept. of Plaintiffs also assert violations of the substantive
Social Servs., 489 US 189, 201. component of the Due Process Clause of the United
States Constitution. Three United States Supreme Court
Plaintiffs have asserted violations of the substantive
cases are critical to our treatment of this issue. In Estelle
component of the Due Process Clause of the Fourteenth
v Gamble (429 US 97, 104) the Court held that [HN6]
Amendment of the United States Constitution--sometimes
the State owes a duty to those whom it has placed in its
called substantive due process--as well as violations of
custody, so that when a prisoner demonstrates that the
the procedural component of the Due Process Clause. In
State exhibited "deliberate indifference" to the prisoner's
general, procedural due process claims challenge the pro-
medical needs, the Constitution's guarantees against
cedures used by the government in effecting a depriva-
cruel and unusual punishment are violated. Although
tion of a right, whereas substantive due process claims
Estelle was an Eighth Amendment case, the Supreme
challenge the action itself. 2 Thus, [HN3] [**1073]
Court has characterized the government's deliberate in-
[***736] substantive due process implicates "the es-
difference toward the prisoner in Estelle as a violation of
sence of state action rather than its modalities." 3 In one
substantive due process (see, DeShaney v Winnebago
commentator's formulation, "[p]rocedural [HN4] due
County Dept. of Social Servs., 489 US 189, 198, n 5,
process differs from substantive due process by focusing
supra; Whitley v Albers, 475 US 312, 326-327).
not on what a person has been deprived of, but rather on
how the deprivation was accomplished." 4 Six years later, the Supreme Court in Youngberg v
Romeo (457 US 307, 315) addressed the government's
2 See, Griffin v Strong, 983 F2d 1544, 1547 obligations to a person whom it committed to a facility
(10th Cir); Sierra Lake Reserve v City of Rocklin, for the mentally retarded. The Court stressed that [HN7]
938 F2d 951, 956-957 (9th Cir), cert granted, people who are in the State's custody are dependent on
judgment vacated and case remanded 506 US the government for their basic needs (457 US, at 324).
802, opn vacated in part 987 F2d 662. The Supreme Court held that inasmuch as Romeo was
3 See, Amsden v Moran, 904 F2d 748, 753 (1st not a prisoner, the Estelle "deliberate indifference" stand-
Cir), cert denied 498 US 1041. ard was inappropriate. The Court ruled that [HN8]
4 Note, Forum Non Conveniens in the Absence Romeo--a person involuntarily committed and thereby
of an Alternative Forum, 86 Colum L Rev 1000, dependent on the government for basic needs--was "en-
1015 (1986). titled to more considerate treatment and conditions of
confinement than criminals whose conditions of confine-
The classic procedural due process case arises when
ment are designed to punish" (457 US, at 322). The
the government acts to deny or curtail someone's life,
Court stated that as to persons so confined the State owes
liberty or property interest and defends its action by as-
a duty to accord [**1074] [***737] such services as
serting that it employed fair procedures in furtherance of
are necessary to insure their reasonable safety. The litig-
a legitimate governmental objective (see, e.g., Schall v
ants in Romeo also agreed that the State owed a duty to
Martin, 467 US 253 [pretrial juvenile detention]; Vitek v
provide such persons "adequate food, shelter, clothing,
Jones, 445 US 480 [prison to mental hospital transfer];
and medical care" ( Youngberg v Romeo, 457 US, at
Addington v Texas, 441 US 418 [civil commitment]).

324). In such a setting an actionable claim is made out if
and when a decision by the State through its professional
administrators with respect to such services "is such a
substantial departure from accepted professional judg-
ment, practice, or standards as to demonstrate that the
person [*725] responsible actually did not base the de-
cision on such a judgment" (supra, 457 US, at 323).
Estelle and Romeo are the two primary cases in
which the Supreme Court recognized monetary damage
claims based on the substantive component of the Due
Process Clause. Neither involved children in foster care.
Thereafter, in 1989, the United States Supreme Court de-
cided DeShaney v Winnebago County Dept. of Social
Servs. (489 US 189), the only case in which it touched
upon the issue of substantive due process in the context
of children in foster care. The Court held that a child
who suffered harm while in the custody of his father has
no claim based on the substantive component of the Due
Process Clause. The Court, however, in a footnote,
stated: "Had the State by the affirmative exercise of its
power removed [the child] from free society and placed
him in a foster home operated by its agents, we might
have a situation sufficiently analogous to incarceration or
institutionalization to give rise to an affirmative duty to
protect" (489 US, at 201, n 9). The Court then cited sev-
eral cases by way of illustration, but expressly dis-
claimed any view on the validity of that analogy.
In the case before us, the original complaint was
drafted before the Supreme Court decided DeShaney. It
was drawn as a putative class action that included vari-
ous plaintiffs, some of whom were allegedly harmed
while in foster care, others while living with their par-
ents. Plaintiffs commenced this litigation employing an
array of claims designed to address numerous facets of
the child welfare system and to test the availability of a
host of remedies, including various forms of injunctive
relief and putative class certification. The complaints
had been conceived and drawn with a broad thrust that
did not contemplate or take aim at the more specific and
essential elements that would enable them to withstand a
motion to dismiss for failure to articulate a substantive
due process violation. Although the complaints are
abundant with allegations relating to defendants' failure
to provide plaintiffs with family social services, we are
left on this appeal only with the sufficiency of the com-
plaints insofar as they seek monetary damages. In ad-
dressing plaintiffs' claims for money damages pursuant
to the substantive component of the Due Process Clause,
the Appellate Division determined, and we agree, that the
complaints did not meet the Estelle "deliberate indiffer-
ence" standard. The Appellate Division, however, did
not address the Romeo "professional judgment" standard.
[*726] Even though in our view the Romeo stand-
Page 24
ard is a better fit, 5 we conclude that plaintiffs have not
articulated a cause of action under Romeo. In Romeo and
Estelle the United States Supreme Court identified a nar-
row set of constitutional entitlements to basic necessities,
arising out of conditions of total dependence in which the
State itself had placed those institutionalized plaintiffs.
Romeo and Estelle, however, do not support any sub-
stantive due process right to monetary redress for the de-
fendants' alleged failure to provide the array of social
services claimed by plaintiffs here. Moreover, the crux
of the plaintiffs' complaints here is the defendants' al-
leged failure to provide protective and preventive ser-
vices to the [**1075] [***738] plaintiffs' families in
order to avoid foster care placement and keep them at
home in a safe environment, or to minimize their stay in
foster care through family rehabilitation services, thereby
expediting their return to a safe home environment. Un-
der DeShaney, however, any substantive due process
rights of foster children cannot be extended to entitle-
ment to preventive and protective services before place-
ment in care, or to family social services during place-
ment. The allegations of harm or denial of needed medic-
al or other services to the children while in foster care are
very much incidental to the foregoing primary com-
plaints that are pleaded, and since plaintiffs never articu-
lated a violation of the Romeo standard of care, an inde-
pendent claim for money damages for injuries in foster
care based on such omissions cannot be implied. Con-
sidering that this Court has never had occasion to deal
with the contours of the substantive component of the
Due Process Clause in the context of a child welfare
case, neither the parties nor the courts below had a pre-
cedential basis on which to proceed. We therefore affirm
the dismissal of those claims with leave to replead.
5 See, e.g., Kearse, Abused Again: Competing
Constitutional Standards for the State's Duty to
Protect Foster Children, 29 Colum J L & Soc
Probs 385 (1996).
Common-Law Negligence
In their briefs, the parties have addressed the viabil-
ity of the so-called common-law tort causes of action.
These causes of action are not pleaded separately, but are
intertwined with a plethora of other causes of action and
theories. Indeed, the complaints do not identify any
common-law duties claimed to be owed plaintiffs--as
distinguished from the alleged breach of other govern-
mental responsibility to furnish protective and [*727]
preventive services, which form the primary bases for
these actions.
We recognize, of course, that pleadings should be
construed liberally, but it would be improvident for us to
attempt to isolate and identify any common-law claims
 Page 25

and theories asserted on plaintiffs' behalf. Although we
do not as a matter of law rule out the possibility of any
such common-law claims, we conclude that no viable
common-law claim has been pleaded and we therefore
grant plaintiffs leave to replead. The parties' remaining
contentions are without merit.
Accordingly, the order of the Appellate Division
should be modified, without costs, by dismissing the re-
maining causes of action, and, as so modified, affirmed.
The certified question should be answered in the negat-
ive.
CONCUR BY: Smith
CONCUR
Smith, J. (Concurring). I concur generally with the
decision of the majority which gives the plaintiffs an op-
portunity to replead the substantive due process and
common-law causes of action. Because of the myriad al-
legations in the complaints, however, I would not fore-
close an opportunity for the plaintiffs to plead a new
cause of action, alleging violations of specific provisions
of the Adoption Assistance and Child Welfare Act of
1980 (42 USC §§ 620-628, 670-679a) and of the Federal
Child Abuse Prevention and Treatment Act (CAPTA; 42
USC §§ 5101-5106). Permitting the repleading of a viol-
ation of specific statutory provisions is consistent with
the statements of the Supreme Court of the United States
in Blessing v Freestone (520 US 329, 345, 346) that
"[w]e do not foreclose the possibility that some provi-
sions of Title IV-D [provisions of the Social Security Act
which generally deal with cooperative State and Federal
child welfare programs] give rise to individual rights"
and "we leave open the possibility that Title IV-D may
give rise to some individually enforceable rights" (see,
Marisol A. v Giuliani, 929 F Supp 660, affd [appeal of
class certification only] 126 F3d 372).
While I agree that the common-law claims must be
repleaded, particularly to clarify plaintiffs' contentions, I
do not agree that no viable common-law claims have
been stated (see, Bartels v Westchester County, 76 AD2d
517; see also, e.g., Mammo v State, 138 Ariz 528,
[***739] [**1076] 675 P2d 1347; Department of
Health & Rehabilitative Servs. v Yamuni, 529 So 2d 258
[Fla]; Brodie v Summit County Children Servs. Bd., 51
Ohio St 3d 112, 554 NE2d 1301; Jensen v Anderson
County Dept. of Social Servs., 304 SC 195, 403 SE2d
615; Gonzalez v Avalos, 866 SW2d 346 [*728] [Tex];
Sabia v State, 164 Vt 293, 669 A2d 1187; Turner v Dis-
trict of Columbia, 532 A2d 662 [DC App]). While this
litigation is old, it is important that the claims of the
plaintiffs against the municipality be clearly focused.
Chief Judge Kaye and Judges Bellacosa, Levine,
Ciparick and Wesley concur with Judge Rosenblatt;
Judge Smith concurs in result in a separate opinion.
Order modified, etc.

4 of 55 DOCUMENTS

Analysis
As of: Sep 10, 2008

[*1] John Uribe, et al., Plaintiffs-Respondents, v Fairfax, L.L.C., etc., et al., Defend-
ants/Third-Party Plaintiffs-Appellants, Michael Garstin, Third-Party Defendant-Re-
spondent. [And a Second Third-Party Action]

2885, 104397/04, 590627/05, 591111/05

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

2008 NY Slip Op 1623; 48 A.D.3d 336; 851 N.Y.S.2d 545; 2008 N.Y. App. Div. LEXIS
1603

February 26, 2008, Decided

February 26, 2008, Entered

NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT
IS SUBJECT TO CHANGE PENDING RELEASE OF
THE FINAL PUBLISHED VERSION. THIS OPIN-
ION IS UNCORRECTED AND SUBJECT TO REVI-
SION BEFORE PUBLICATION IN THE OFFICIAL
REPORTS.
PRIOR HISTORY: Uribe v. Fairfax, 2007 N.Y. App.
Div. LEXIS 8940 (N.Y. App. Div. 1st Dep't, Aug. 9, 2007)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant owners ap-
pealed an order by the New York County Supreme Court
(New York) that granted defendant tenant's motion for
summary judgment and denied the owners' cross-motion
for summary judgment on the issue of their entitlement
to common-law indemnification.
OVERVIEW: Plaintiff worker was injured when he fell
from a ladder while in the employ of a contractor hired
by the tenant to perform alteration work to the tenant's
apartment in the owners' building. When the worker was
granted partial summary judgment on his Labor Law §
240(1) claim against the owners, the owners sought to
hold the tenant liable based on the tenant's breach of a
lease provision requiring the owners' prior written con-
sent to the work, and discussions between the tenant and
the contractor regarding which phase of the job to start
first. The appellate court found that dismissal of the
third-party complaint was proper since the tenant was
not in the apartment when the work was performed, gave
the contractor no instructions regarding how to do the
work, and did not supply any equipment or tools. The
tenant exercised no supervisory authority or control over
the job, and his alleged violation of the lease was not rel-
evant to the issue of common-law indemnification since
the accident was not attributable to negligence by the
tenant. The tenant's alleged conversations with the con-
tractor regarding which tasks to perform first were insuf-
ficient to establish control over the work.
OUTCOME: The order was unanimously affirmed.
CORE TERMS: contractor, summary judgment, indem-
nification, common-law, apartment, lease
COUNSEL: Thomas D. Hughes, New York (David D.
Hess of counsel), for appellants.
Page 26
Hoey, King, Toker & Epstein, New York (Robert O.
Pritchard, Jr., of counsel), for Michael Garstin, respond-
ent.
JUDGES: Lippman, P.J., Tom, Nardelli, Catterson,
Moskowitz, JJ.
OPINION
[**336] [***546] Order, Supreme Court, New
York County (Carol R. Edmead, J.), entered September
1, 2006, which, insofar as appealed from, granted the
motion of third-party defendant Garstin (Tenant) for
summary judgment dismissing the third-party complaint,
and denied the cross motion of Fairfax L.L.C., Rockrose
Development Corp. and Rockrose Corp. (Owners) for
summary judgment against Tenant on the issue of their
entitlement to common-law indemnification, unanim-
ously affirmed, without costs.
Plaintiff John Uribe was injured when he fell from a
ladder while in the employ of a contractor hired by Ten-
ant to perform alteration work to Tenant's apartment in
Owners' building. Uribe was granted partial summary
judgment on his Labor Law § 240(1) claim against Own-
ers, and Owners seek to hold Tenant liable based on Ten-
ant's breach of a lease provision requiring Owners' prior
written consent to the work, and discussions between
Tenant and the contractor regarding which phase of the
job to start first.
Dismissal of the third-party complaint was proper
where the [**337] record evidence establishes that Ten-
ant was not in the apartment when the subject work was
[***547] performed, gave the contractor no instructions
regarding how to do the work, and did not supply any
equipment or tools. Tenant also exercised no supervisory
authority or control over the job, and Tenant's alleged vi-
olation of the lease is not relevant to the issue of com-
mon-law indemnification in light of the lack of evidence
that the accident was attributable to negligence on Ten-
ant's part (see Correia v Professional Data Mgt., 259
AD2d 60, 65, 693 N.Y.S.2d 596 [1999]). Similarly, Ten-
ant's alleged conversations with the contractor regarding
which tasks to perform first are insufficient to [*2] es-
tablish control over the work (see Garcia v Petrakis, 306
AD2d 315, 760 N.Y.S.2d 551 [2003]; Richichi v Con-
struction Mgt. Tech., 244 AD2d 540, 664 N.Y.S.2d 615
[1997]).
THIS CONSTITUTES THE DECISION AND OR-
DER OF THE SUPREME COURT, APPELLATE DIVI-
SION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 26, 2008
 Page 27

5 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

[*1] Jose Castillo, appellant, v 62-25 30th Avenue Realty, LLC, et al., respondents.
(Index No. 27819/02)

2006-10252

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

2008 NY Slip Op 641; 47 A.D.3d 865; 850 N.Y.S.2d 616; 2008 N.Y. App. Div. LEXIS
670

January 29, 2008, Decided

NOTICE: ation was not a proximate cause of the injuries. The ap-
pellate court found, however, that under either scenario,
THE LEXIS PAGINATION OF THIS DOCUMENT
there was no rational basis to find that a violation of
IS SUBJECT TO CHANGE PENDING RELEASE OF
Labor Law § 240(1) was not the proximate cause of the
THE FINAL PUBLISHED VERSION. THIS OPIN-
injuries. There was no merit to the suggestion that the
ION IS UNCORRECTED AND SUBJECT TO REVI-
jury could have found that the worker's handling of a
SION BEFORE PUBLICATION IN THE OFFICIAL
metal rack caused him to fall, because contributory neg-
REPORTS.
ligence was not a defense to a Labor Law § 240 viola-
tion. Since the owner and the tenant, failed, under either
CASE SUMMARY:
scenario, to present evidence that their Labor Law §
240(1) violation was not a proximate cause of the injur-
ies, the trial court should have set aside the verdict and
PROCEDURAL POSTURE: Plaintiff worker sued de-
entered judgment as to liability.
fendants owner of a building and tenant, seeking dam-
ages for personal injuries suffered while working on the
OUTCOME: The judgment was reversed, the Labor
building. A jury in the Supreme Court, Queens County
Law § 240(1) cause of action was reinstated, the worker's
(New York), returned a defense verdict. The trial court
motion to set aside the jury verdict and for judgment as a
then denied the worker's motion to set aside the jury ver-
matter of law on the issue of liability on the Labor Law §
dict and for judgment as a matter of law on the issue of
240(1) cause of action was granted, and the matter was
liability on his Labor Law § 240(1) cause of action. The
remitted to the trial court for a trial on the issue of dam-
worker appealed.
ages.
OVERVIEW: The worker was injured while removing
CORE TERMS: scaffold, falling, cause of action, scen-
metal racks from a wall. Two versions of the accident
ario, metal, matter of law, jury verdict, issue of liability,
were presented to the jury. Two witnesses testified that
proximate cause, rack, hit, safety devices, elevated,
the worker fell from the elevated worksite when a metal
handling, hazards, deposition testimony, deposition
rack came loose and, after he hit the floor, the metal
piece fell and hit him across the leg. The worker testified
LexisNexis(R) Headnotes
that he was standing under the scaffold when a piece of
the scaffold fell and hit him in the head. The jury found a
violation of Labor Law § 240(1), but found that the viol-

Labor & Employment Law > Occupational Safety &
Health > Civil Liability
Torts > Negligence > Defenses > Contributory Negli-
gence > Limits on Application > General Overview
Workers' Compensation & SSDI > Remedies Under
Other Laws > Americans With Disabilities Act
[HN1] Contributory negligence is not a defense to a viol-
ation of Labor Law § 240.
Labor & Employment Law > Occupational Safety &
Health > Civil Liability
Workers' Compensation & SSDI > Remedies Under
Other Laws > General Overview
[HN2] Labor Law § 240(1) applies to both falling worker
and falling object cases. The statutory requirement that
workers be provided with proper protection extends not
only to the hazards of building materials falling, but to
the hazards of defective parts of safety devices falling
from an elevated level to the ground.
COUNSEL: Friedman, Friedman, Chiaravalloti & Gian-
nini (Alan M. Friedman of counsel), for appellant.
Baxter, Smith, Tassan & Shapiro, P.C., White Plains,
N.Y. (Sim R. Shapiro of counsel), for respondents.
JUDGES: WILLIAM F. MASTRO, J.P., FRED T. SAN-
TUCCI, JOSEPH COVELLO, DANIEL D. ANGI-
OLILLO, JJ. MASTRO, J.P., SANTUCCI, COVELLO
and ANGIOLILLO, JJ., concur.
OPINION
[***616] [**865] DECISION & ORDER
In an action to recover damages for personal injur-
ies, the plaintiff appeals from a judgment of the Supreme
Court, Queens County (Flug, J.), entered October 12,
2006, which, upon a jury verdict in favor of the defend-
ants and against him, and upon [***617] an order of the
same court dated May 19, 2006, denying his motion pur-
suant to CPLR 4404(a) to set aside the jury verdict and
for judgment as a matter of law on the issue of liability
on the Labor Law § 240(1) cause of action, is in favor of
the defendants and against him, in effect, dismissing the
Labor Law § 240(1) cause of action.
ORDERED that the judgment is reversed, on the
law, with costs, the Labor Law § 240(1) cause of action
is reinstated, the plaintiff's motion pursuant to CPLR
4404(a) to set aside the jury verdict and for judgment as
a matter of law on the issue of liability on the Labor Law
§ 240(1) cause of action is granted, and the matter is re-
mitted to the Supreme Court, Queens County, for a trial
Page 28
on the issue of damages, and the order dated May 19,
2006, is modified accordingly.
The plaintiff, who was performing construction
work in a building that was owned by the defendant 62-
25 30th Avenue Realty, LLC, and leased by the defend-
ant Zahmel Restaurant Supply Corp., d/b/a Zahner's
Cash & Carry, was injured while removing large, heavy
metal racks from a wall. The jury was presented with two
versions of how the accident [**866] occurred. Accord-
ing to the deposition testimony of a coworker and eye-
witness, which was read into evidence at trial, the
plaintiff fell from the elevated worksite when the metal
rack he was working on suddenly came loose and, after
he hit the floor, the metal piece he had been handling fell
and hit him across the leg. In contrast, after initially stat-
ing at his deposition that he had no recollection of how
he got hurt, the plaintiff testified at his deposition that he
was standing under the scaffold when a piece of the [*2]
scaffold fell and hit him in the head. The plaintiff's de-
position testimony was also read into evidence at trial.
The jury found that there was a violation of Labor
Law § 240(1), but that the violation was not a proximate
cause of the plaintiff's injuries. However, when viewing
the evidence in the light most favorable to the defendants
(see Szczerbiak v Pilat, 90 NY2d 553, 686 N.E.2d 1346,
664 N.Y.S.2d 252), under either scenario presented to the
jury, there was no rational basis for the jury to conclude
that a violation of Labor Law § 240(1) was not the prox-
imate cause of the plaintiff's injuries (see Felker v Corn-
ing Inc., 90 NY2d 219, 224, 682 N.E.2d 950, 660
N.Y.S.2d 349; Zimmer v Chemung County Performing
Arts, 65 NY2d 513, 518, 482 N.E.2d 898, 493 N.Y.S.2d
102).
The defendants concede that a fall from a scaffold
would be covered by Labor Law § 240(1). There is no
merit to their suggestion that the jury could have con-
cluded that the plaintiff's handling of the metal rack
caused him to fall, because [HN1] "contributory negli-
gence is not a defense to a violation of section 240" (La
Lima v Epstein, 143 AD2d 886, 888, 533 N.Y.S.2d 399
[internal quotation marks and citations omitted]).
The second scenario before the jury would also be
covered by [HN2] Labor Law § 240(1), which "applies
to both falling worker' and falling object' cases" (Nar-
ducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268,
750 N.E.2d 1085, 727 N.Y.S.2d 37). This Court has held
that "the statutory requirement that workers be provided
with proper protection extends not only to the hazards of
building materials falling," but to the hazards of defect-
ive parts of safety devices "falling from an elevated level
to the ground" (Jiron v China Buddhist Assn., 266 AD2d
347, 349, 698 N.Y.S.2d 315 [injury caused by a falling
piece of a hoist would be covered by the statute]; see
 Page 29

Smith v Jesus People, 113 AD2d 980, 983, 493 N.Y.S.2d
658 [injury [***618] caused by a plank falling from a
scaffold was covered by the statute]). Moreover, if the
accident was caused by a piece of the scaffold falling
from a height of 10 or 12 feet, "proper construction . . .
of the [scaffold], which is one of the safety devices enu-
merated in the statute, could have prevented it" (Jiron v
China Buddhist Assn., 266 AD2d at 349).
Other than the above two scenarios, and the
plaintiff's trial [**867] testimony that he did not re-
member whether he was on top of or underneath the
scaffold at the time of the accident, no other evidence
was before the jury. Since the defendants failed, under
either scenario, to present evidence that their violation of
Labor Law § 240(1) was not a proximate cause of the
plaintiff's injuries, the Supreme Court should have gran-
ted the plaintiff's motion to set aside the verdict and for
judgment as a matter of law on the issue of liability pur-
suant to Labor Law § 240(1).
The plaintiff's remaining contentions need not be
reached in light of our determination.
MASTRO, J.P., SANTUCCI, COVELLO and AN-
GIOLILLO, JJ., concur.

6 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

[*1] 905 5th Associates, Inc., et al., Plaintiffs-Appellants-Respondents, v 907 Cor-

poration, et al., Defendants-Respondents, My Home Remodeling, Inc., Defendant-
Respondent-Appellant.

1720, 100662/06

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

2008 NY Slip Op 32; 47 A.D.3d 401; 851 N.Y.S.2d 393; 2008 N.Y. App. Div. LEXIS 5

January 3, 2008, Decided

January 3, 2008, Entered

NOTICE: mary judgment motion of the cooperative and the man-

aging agent and partially denied a cross motion of the
THE LEXIS PAGINATION OF THIS DOCUMENT
contractor and the neighbors for summary judgment. The
IS SUBJECT TO CHANGE PENDING RELEASE OF
doctor, the contractor, and the neighbors appealed.
THE FINAL PUBLISHED VERSION. THIS OPIN-
ION IS UNCORRECTED AND SUBJECT TO REVI-
OVERVIEW: The doctor claimed that she was con-
SION BEFORE PUBLICATION IN THE OFFICIAL
structively evicted from her medical offices. The appel-
REPORTS.
late court found that the case against the cooperative and
the managing agent was properly dismissed for lack of
CASE SUMMARY:
evidence that the cooperative committed any wrongful
act leading to the constructive eviction. It was arguably
the cooperative's duty, pursuant to the proprietary lease,
PROCEDURAL POSTURE: Plaintiff doctor sued de-
to keep the concrete slab between the doctor's offices and
fendants neighbors, contractor, cooperative, and man-
her upstairs neighbors in good repair unless the damage
aging agent, seeking damages resulting from renovation
was caused by a tenant. The doctor failed to present any
work being performed for the neighbors. The Supreme
evidence that the damage was in any way caused by the
Court, New York County (New York), granted a sum-
cooperative rather than by the neighbors and their con-

tractor or by the doctor herself, whose previous renova-
tions included work on the same slab. The contractor's
cross motion for summary judgment was properly
denied; the doctor's expert affidavits raised fact issues as
to whether the work the contractor performed proxim-
ately caused debris and dust to infiltrate the doctor's of-
fice, and whether the protective measures it recommen-
ded but the doctor allegedly rejected would have been ef-
fective. Further, a wrongful eviction claim could have
only been brought against a landlord.
OUTCOME: The judgment was modified, and the
causes of action for constructive eviction and for tortious
interference with the doctor's leasehold rights were dis-
missed as against the contractor and the neighbors. The
judgment was otherwise affirmed.
CORE TERMS: cooperative, cause of action, renova-
tion, contractor, punitive damages, managing agent,
properly denied, properly dismissed, constructive evic-
tion, proprietary lease, issues of fact, residential, neigh-
bors, upstairs, tenant, notice, slab, summary judgment
LexisNexis(R) Headnotes
Real Property Law > Landlord & Tenant > Tenant's
Remedies & Rights > General Overview
Real Property Law > Landlord & Tenant > Tenant's
Remedies & Rights > Remedies > General Overview
Torts > Intentional Torts > General Overview
[HN1] A claim of wrongful eviction can only be brought
against a landlord.
COUNSEL: Kopff, Nardelli & Dopf, LLP, New York
(Martin B. Adams of counsel), for appellants-respond-
ents.
Faust Goetz Schenker & Blee LLP, New York (Lisa L.
Gokhulsingh of counsel), for respondent-appellant.
Pillinger Miller Tarallo, LLP, Elmsford (C. William Ya-
nuck of counsel), for 907 Corporation and Brown Harris
Stevens Residential Management, LLC, respondents.
Gallet Dreyer & Berkey, LLP, New York (Morrell I.
Berkowitz of counsel), for Richard & Liane Weintraub,
respondents.
JUDGES: Lippman, P.J., Andrias, Marlow, Buckley,
Catterson, JJ.
OPINION
Page 30
[**401] [***395] Order, Supreme Court, New
York County (Faviola Soto, J.), entered July 13, 2006,
which, to the extent appealed from, granted the cross mo-
tion of defendants 907 Corporation and Brown Harris
Stevens Residential Management, LLC for summary
judgment dismissing the complaint as against them, and
granted the motion by the Weintraub defendants and the
cross motion by defendant My Home Remodeling, Inc.
(My Home) for summary judgment only to the extent of
dismissing the seventh cause of action for punitive dam-
ages as against them, unanimously modified, on the law,
the third and sixth causes of action dismissed as against
My Home and, upon a search of the record, as against the
Weintraub defendants, and otherwise affirmed, without
costs.
In this action to recover alleged damages resulting
from renovation work being performed, with the cooper-
ative's approval, [**402] by defendant contractor My
Home for plaintiff Pamela Lipkin's upstairs neighbors,
the Weintraub defendants, the case against the cooperat-
ive corporation and its residential managing agent was
properly dismissed for lack of evidence that the cooper-
ative committed any wrongful act leading to Dr. Lipkin's
constructive eviction from her medical offices (see
Barash v Pennsylvania Term. Real Estate Corp., 26
NY2d 77, 82, 256 N.E.2d 707, 308 N.Y.S.2d 649 [1970]).
It is arguably the cooperative's duty, pursuant to the pro-
prietary lease, to keep the concrete slab between Dr. Lip-
kin's offices and her upstairs neighbors in good repair un-
less the damage has been caused by a tenant (cf. Haupt-
man v 222 E. 80th St. Corp., 100 Misc 2d 153, [*2]
154-155, 418 N.Y.S.2d 728 [1979]). However, plaintiffs
failed to present any evidence that the [***396] damage
was in any way caused by the cooperative rather than by
the Weintraubs and their contractor or by Dr. Lipkin her-
self, who had previously made renovations to her offices,
including work on the same slab. Other than by specula-
tion, plaintiffs failed to demonstrate that the cooperative
controlled the means and methods of the work or that it
was negligent in its approval of the renovation plan in
the first place. Plaintiffs' reliance on a notice of violation
issued against the cooperative as evidence of its negli-
gence is unavailing, as the notice does not allege any af-
firmative acts of negligence by the cooperative.
Moreover, without any evidence of negligence on its
part, the cooperative is shielded from liability pursuant to
language in the parties' proprietary lease specifically
providing that the cooperative "shall not be liable for . . .
injury or damage to person or property caused by . . . an-
other tenant . . . unless caused by the negligence of the
[cooperative]." Furthermore, to the extent that plaintiffs
claim the cooperative acted unreasonably in addressing
Dr. Lipkin's complaints and determining that there was
nothing more it was required to do with respect to those
 Page 31

complaints, they present no evidence in support of such
contention. Thus, any decision made by the cooperative
and its managing agent with regard to such complaints,
which the record reflects were primarily handled by
plaintiffs' attorney and representatives of the Weintraubs
and My Home, would be insulated from further judicial
review (see generally Matter of Levandusky v One Fifth
Ave. Apt. Corp., 75 NY2d 530, 553 N.E.2d 1317, 554
N.Y.S.2d 807 [1990]).
My Home's cross motion for summary judgment
was properly denied; plaintiffs' expert affidavits raised
issues of fact as to whether the work the contractor per-
formed proximately caused debris and dust to infiltrate
Dr. Lipkin's office, and whether the protective measures
it recommended but Dr. Lipkin allegedly rejected would
have been effective. Furthermore, an issue of fact exists
as to whether My Home agreed to indemnify the
[**403] Weintraub defendants for claims such as
plaintiffs'; accordingly, that part of its cross motion seek-
ing dismissal of the Weintraub defendants' cross claims
was also properly denied. However, the court should
have dismissed the third cause of action against the
Weintraub defendants and My Home for constructive
eviction, as that [HN1] claim can only be brought against
a landlord (see Barash, 26 NY2d at 82). Similarly, the
sixth cause of action for tortious interference with Dr.
Lipkin's leasehold rights should have been dismissed as
against the Weintraub defendants and My Home, as that
claim necessarily assumes liability on the part of the co-
operative.
Finally, plaintiffs' claim for punitive damages was
properly dismissed since the complaint does not allege
egregious culpable conduct or wrongdoing aimed at the
general public (Silverman v 145 Tenants Corp., 248
AD2d 261, 262, 670 N.Y.S.2d 434 [1998]).
THIS CONSTITUTES THE DECISION AND OR-
DER OF THE SUPREME COURT, APPELLATE DIVI-
SION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2008

7 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

[*1] Joanne M. Browning, Individually and as Personal Representative of the Es-

tate of Jill Lyn Euto, Deceased, et al., Respondents, v James Properties, Inc., et al.,
Appellants.

968 CA 06-00569

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DE-

PARTMENT

2006 NY Slip Op 6639; 32 A.D.3d 1160; 821 N.Y.S.2d 696; 2006 N.Y. App. Div. LEXIS
11236

September 22, 2006, Decided

September 22, 2006, Entered

CASE SUMMARY: fendants' motion seeking summary judgment dismissing

the complaint. Defendants appealed the judgment.

PROCEDURAL POSTURE: Plaintiffs filed an action
against defendants, the owner and manager of a building,
seeking damages for the wrongful death and the con-
scious pain and suffering of a decedent. The Supreme
Court, Onondaga County (New York), denied in part de-
OVERVIEW: The decedent leased an apartment in a
building owned and managed by defendants, and she was
murdered in the apartment. The appellate court held that
the trial court erred in determining plaintiffs raised an is-
sue of fact as to whether defendants breached their duty

to take minimal precautions to protect decedent from
foreseeable harm from the criminal conduct of a third
party. Landlords had a common-law duty to take minimal
precautions to protect tenants from foreseeable harm, in-
cluding a third party's foreseeable criminal conduct. The
necessary causal link between a landlord's culpable fail-
ure to provide adequate security and a tenant's injuries
resulting from a criminal attack in a building could be es-
tablished only if the assailant gained access to the
premises through a negligently maintained entrance. De-
fendants established that there was no history of violent
crime by third parties in the building. Furthermore, de-
fendants established that the doors into the building were
secured by automatic locks accessible by a computerized
key fob issued only to tenants and that the apartment
doors were secured with automatic dead bolt locks.
OUTCOME: The order was reversed on the law,
without costs, the motion for summary judgment was
granted in its entirety, and the complaint was dismissed.
CORE TERMS: tenant, issue of fact, apartment, failed
to raise, decedent, door, foreseeable, lock, negligently,
precautions, assailant, breached, entrance, gained, violent
crime, violent conduct, reason to know, security meas-
ures, automatically, computerized, accessible, automatic,
intercom, unlocked, landlord's, visitors, locked, dead,
bolt, peep
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Crimin-
al Acts
[HN1] Landlords have a common-law duty to take min-
imal precautions to protect tenants from foreseeable
harm, including a third party's foreseeable criminal con-
duct. However, the necessary causal link between a land-
lord's culpable failure to provide adequate security and a
tenant's injuries resulting from a criminal attack in a
building could be established only if the assailant gained
access to the premises through a negligently maintained
entrance.
HEADNOTES
Negligence--Foreseeability.--Complaint was dis-
missed in action based upon murder of decedent in apart-
ment she leased from defendants--plaintiffs failed to
raise issue of fact whether defendants breached their duty
to take minimal precautions to protect decedent from
foreseeable harm from criminal conduct of third party--
there was no history of violent crime by third parties in
Page 32
building, and plaintiffs failed to raise issue of fact wheth-
er defendants knew or had reason to know that there was
likelihood of violent conduct on part of third persons in
building--doors into building were secured by automatic
locks accessible by computerized key fob issued only to
tenants, there was intercom system by which tenants ad-
mitted visitors, apartment doors were secured by lock
with dead bolt that locked automatically unless left un-
locked by tenant, and each apartment door contained
peep hole; plaintiffs failed to raise issue of fact whether
assailant gained access to premises through negligently
maintained entrance.
COUNSEL: COSTELLO, COONEY & FEARON,
PLLC, SYRACUSE (LOUIS J. VIVIANI OF COUN-
SEL), FOR DEFENDANTS-APPELLANTS.
CHERUNDOLO, BOTTAR & LEONE, P.C., SYRA-
CUSE (TIMOTHY J. DE MORE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.
JUDGES: PRESENT: PIGOTT, JR., P.J., SCUDDER,
KEHOE, SMITH, AND GREEN, JJ.
OPINION
[**1160] [***697] Appeal from an order of the
Supreme Court, Onondaga County (Anthony J. Paris, J.),
entered July 22, 2005. The order, [**1161] insofar as ap-
pealed from, denied in part defendants' motion seeking
summary judgment dismissing the complaint.
It is hereby ordered that the order insofar as ap-
pealed from be and the same hereby is unanimously re-
versed on the law without costs, the motion is granted in
its entirety and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action
seeking damages for the wrongful death and the con-
scious pain and suffering of decedent, the daughter of
plaintiff Joanne M. Browning and the sister of plaintiff
Jenna Euto. Decedent leased an apartment in a building
owned by defendant HKS Realty Associates, Inc. and
managed by defendant James Properties, Inc., and she
was murdered in the apartment. The murder investigation
remains open and unsolved. We agree with defendants
that Supreme Court erred in failing to grant in its entirety
their motion seeking summary judgment dismissing the
complaint. Although the court properly determined that
defendants met their initial burden of establishing their
entitlement to judgment, it erred in determining that
plaintiffs raised an issue of fact whether defendants
breached their duty to take minimal precautions to pro-
tect decedent from foreseeable harm from the criminal
conduct of a third party.
[HN1] "Landlords have a common-law duty to take
 Page 33

minimal precautions to protect tenants from foreseeable
harm,' including a third party's foreseeable criminal con-
duct" (Burgos v Aqueduct Realty Corp., 92 NY2d 544,
548, 706 NE2d 1163, 684 NYS2d 139 [1998]). However,
"the necessary causal link between a landlord's culpable
failure to provide adequate security and a tenant's injur-
ies resulting from a criminal attack in [a] building can be
established only if the assailant gained access to the
premises through a negligently maintained entrance" (id.
at 550). Defendants established that there was no history
of violent crime by third parties in the building, and
plaintiffs failed to raise an issue of fact whether defend-
ants knew or had reason to know "from past experience
'that there [was] a [*2] likelihood of [violent] conduct
on the part of third persons' " in the building (Nallan v
Helmsley-Spear, Inc., 50 NY2d 507, 519, 407 NE2d 451,
429 NYS2d 606 [1980]; see Todorovich v Columbia
Univ., 245 AD2d 45, 45-46, 665 NYS2d 77 [1997], lv
denied 92 NY2d 805, 700 NE2d 320, 677 [***698]
NYS2d 781 [1998]; cf. Jacqueline S. v City of New York,
81 NY2d 288, 291, 614 NE2d 723, 598 NYS2d 160
[1993], rearg denied 82 NY2d 749, 622 NE2d 308, 602
NYS2d 807 [1993]; Venetal v City of New York, 21 AD3d
1087, 1089, 803 NYS2d 609 [2005]). Although plaintiffs
provided evidence of one violent crime in proximity to
the building in which decedent lived, they failed to raise
an issue of fact whether "ambient crime ha[d] demon-
strably infiltrated [the] premises or [that defendants
were] otherwise on notice of a serious risk [**1162] of
such infiltration that [their] duty to provide protection
against the acts of criminal intruders may be said to
[have] arise[n]" (Todorovich, 245 AD2d at 46). We fur-
ther conclude that the affidavit of an expert on security
measures submitted by plaintiffs is insufficient to raise
an issue of fact whether defendants breached their duty
to "maintain minimal security measures, related to [the]
specific building itself, in the face of foreseeable crimin-
al intrusion upon tenants" (Miller v State of New York,
62 NY2d 506, 513, 467 NE2d 493, 478 NYS2d 829
[1984]). Furthermore, defendants established that the
doors into the building were secured by automatic locks
accessible by a computerized key fob issued only to ten-
ants, that there was an intercom system by which ten-
ants admitted visitors, that the apartment doors were se-
cured by a lock with a dead bolt that locked automatic-
ally unless left unlocked by the tenant, and that each
apartment door contained a peep hole, and we conclude
that plaintiffs failed to raise an issue of fact whether the
"assailant gained access to the premises through a negli-
gently maintained entrance" (Burgos, 92 NY2d at 550;
cf. Jacqueline S., 81 NY2d at 292; Venetal, 21 AD3d at
1090-1091). Present--Pigott, Jr., P.J., Scudder, Kehoe,
Smith, and Green, JJ.

8 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

[*1] Thomas F. McNally, as Guardian Ad Litem for Thomas J. McNally, Respond-

ent, v Yitzchak Sabban et al., Appellants.

8678, Index 13799/03

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

2006 NY Slip Op 6309; 32 A.D.3d 340; 820 N.Y.S.2d 260; 2006 N.Y. App. Div. LEXIS
10361

August 24, 2006, Decided

August 24, 2006, Entered

CASE SUMMARY:
PROCEDURAL POSTURE: Defendant property own-

ers sought review of an order of the Supreme Court,
Bronx County (New York), which denied defendants'
motion for summary judgment. Plaintiff tenant filed an
action against the owners alleging that he was injured
when he slipped and fell on a common stairway in the
owner's multi-family residential building.
OVERVIEW: The tenant alleged that there were nu-
merous statutory or code violations in the stairway of the
building, including defects in the door openings, head-
room, lack of hand rail, risers, treads, stair geometry,
possible roof leak and an improper location of a light
switch. The defects in the building were confirmed by
the tenant's expert, who asserted that the owners' failure
to provide handrails in the staircase caused the accident.
The tenant submitted testimony from other occupants of
the building that indicated that the tenant had a drinking
problem and submitted hospital records that showed that
the tenant was extremely intoxicated at the time of the
accident. The lower court denied the owners' motion for
summary judgment finding that the tenant had raised
factual issues concerning causation. The court held that
the tenant did not sustain his ultimate burden of proving
that the owners' negligence caused the tenant's injuries.
The tenant could not recall how the accident happened
and the tenant could only resort to sheer speculation in
attributing the owners' negligence as the proximate cause
of the tenant's injuries.
OUTCOME: The court reversed the decision of the
lower court.
CORE TERMS: stairway, code violations, summary
judgment, proximate cause, possible causes, speculation,
drinking, intoxicated, triable issue, causation, replete, re-
mote, intoxication, uncontested, tenant, stair
LexisNexis(R) Headnotes
Torts > Negligence > Proof > Burdens of Proof
[HN1] The Supreme Court of New York, Appellate Divi-
sion, has consistently held that where the facts proven
show that there are several possible causes of an injury,
for one or more of which the defendant was not respons-
ible, and it is just as reasonable and probable that the in-
jury was the result of one cause as the other, plaintiff
cannot have a recovery, since he has failed to prove that
the negligence of the defendant caused the injury. Even
when there is no requirement for the plaintiff to exclude
every other possible cause other than a defendant's
breach of duty, the record must render the other possible
causes sufficiently remote to enable the trier of fact to
reach a verdict based upon the logical inferences to be
Page 34
drawn from the evidence, not upon speculation.
HEADNOTES
Negligence--Proximate Cause.--Complaint was dis-
missed because there was no triable issue as to cause of
plaintiff's fall on stairway in defendant's building; it was
uncontested that plaintiff was highly intoxicated when he
fell; record was replete with evidence of plaintiff's drink-
ing history and there was no evidence that any of alleged
code violations caused fall.
COUNSEL: Thomas M. Bona, P.C., White Plains
(James C. Miller of counsel), for appellants.
Rubin & Licatesi, P.C., Garden City (Jason S. Firestein
of counsel), for respondent.
JUDGES: Concur--Tom, J.P., Marlow, Gonzalez,
Sweeny, Catterson, JJ.
OPINION
[**340] [***261] Order, Supreme Court, Bronx
County (Alison Y. Tuitt, J.), entered July 15, 2005, deny-
ing defendants' motion for summary judgment, unanim-
ously reversed, on the law, without costs, the motion
granted and the complaint dismissed. The Clerk is direc-
ted to enter judgment accordingly.
In this slip-and-fall action, plaintiff Thomas J.
McNally was injured when he apparently fell down the
common stairway of a multifamily residential building
owned by defendants. Plaintiff [**341] is a tenant in the
building. On the morning of June 14, 2002, he was found
lying unconscious at the foot of the stairs. It is uncon-
tested that plaintiff was highly intoxicated when he fell.
Plaintiff commenced the suit against defendants, al-
leging that there were numerous statutory or code viola-
tions in the stairway of the building. Plaintiff's expert af-
firmed that the code violations included defects in door
openings, headroom, lack of a hand rail, risers, treads,
stair geometry, possible roof leak and an improper loca-
tion of a light switch. In particular, the expert asserted
that defendants' failure to provide handrails in the stair-
case caused the accident. Defendants submitted testi-
mony of other tenants in the building demonstrating that
plaintiff had a drinking problem. Furthermore, the hos-
pital records showed that he was probably extremely in-
toxicated at the time of the accident.
[***262] Subsequently, defendants moved for sum-
mary judgment arguing that there was no admissible
evidence to prove that the statutory or code violations in
the stairway were the proximate cause of plaintiff's injur-
ies.
 Page 35

Supreme Court denied the motion, holding that
plaintiff had raised questions of fact relating to the issue
of causation. We reverse, and, for the reasons set forth
below, grant summary judgment to defendants dismiss-
ing the complaint against them.
On appeal, defendants assert correctly that it is
plaintiff's ultimate burden to prove that defendants' negli-
gence caused plaintiff's injuries. Moreover, defendants
properly assert that because plaintiff cannot recall how
the accident happened, plaintiff can only resort to sheer
speculation in asserting that defendants' negligence was
the proximate cause of his injuries.
[HN1] We have consistently held that " '[w]here the
facts proven show that there are several possible causes
of an injury, for one or more of which the defendant was
not responsible, and it is [*2] just as reasonable and
probable that the injury was the result of one cause as the
other, plaintiff cannot have a recovery, since he has failed
to prove that the negligence of the defendant caused the
injury' " (Lynn v Lynn, 216 AD2d 194, 195, 628 NYS2d
667 [1995]), quoting Ingersoll v Liberty Bank of Buffalo,
278 NY 1, 7, 14 NE2d 828 [1938]; see also Bernstein v
City of New York, 69 NY2d 1020, 1021-1022, 511 NE2d
52, 517 NYS2d 908 [1987]). Even when there is no re-
quirement for the plaintiff to exclude every other pos-
sible cause other than a defendant's breach of duty, "the
record must render the other possible causes sufficiently
remote to enable the trier of fact to reach a verdict based
upon the logical inferences to be drawn from the evid-
ence, not upon speculation" (Lynn v Lynn, 216 AD2d at
195-196 [citation omitted]).
[**342] In Kane v Estia Greek Rest., (4 AD3d 189,
190, 772 NYS2d 59 [2004]), a similar case to the one at
bar, we granted summary judgment to the defendant on
the basis that "[a]bsent an explication of facts explaining
the accident, the verdict would rest on only speculation."
Further, we determined that even if an expert alludes to
potential defects on a stairway, the plaintiff still must es-
tablish that the slip and fall was connected to the sup-
posed defect (id.).
In this case, no one witnessed plaintiff's fall, but the
record is replete with evidence of plaintiff's drinking his-
tory and recurring falls. Further, there simply is no evid-
ence of record that any of the alleged code violations
caused plaintiff's fall. Consequently, there is no triable is-
sue as to causation. Indeed, plaintiff's testimony that he
had no recollection of how the accident occurred is, un-
der the circumstances of this case, sufficient to find for
defendants as a matter of law (Birman v Birman, 8 AD3d
219, 777 NYS2d 310 [2004]).
Plaintiff's argument that his intoxication is pertinent
only on the issue of comparative negligence is without
merit because plaintiff's intoxication may well be the
principal cause of his harm and renders the alleged de-
fects of the stairway too remote to constitute a proximate
cause of his injuries. Concur--Tom, J.P., Marlow, Gonza-
lez, Sweeny and Catterson, JJ.

9 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

[*1] Duane Reade, Appellant, v SL Green Operating Partnership, LP, Respondent.

113478/03

7687

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

2006 NY Slip Op 4512; 30 A.D.3d 189; 817 N.Y.S.2d 230; 2006 N.Y. App. Div. LEXIS
7514

June 8, 2006, Decided

June 8, 2006, Entered

PRIOR HISTORY:
Reade v. SL Green Operating P'ship, 2005 NY App Div
LEXIS 2531 (1st Dept, Mar. 10, 2005)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff commercial ten-
ant filed a complaint alleging that defendant building
owner reduced the heat in the building which caused a
sprinkler pipe to burst, resulting in $ 500,000 in damages
to his property. Concluding that the owner's duty to the
tenant arose solely under the lease, the Supreme Court,
New York County (New York), dismissed the negligence
cause of action as duplicative of the contract cause of ac-
tion. The tenant appealed.
OVERVIEW: The tenant argued that the duties implic-
ated by its negligence cause of action arose not from the
owner's violation of obligations imposed by the lease but
from those imposed by statute, specifically, the duty to
maintain the premises in reasonably safe condition and to
protect the components of the sprinkler system from
freezing temperatures. The tenant claimed that the duty
upon which its negligence claim rested was imposed by
a statute designed for the protection of the general public
and, thus, may be asserted in addition to its contract
claim. The appellate court agreed and held that the ten-
ant had stated a viable tort claim. The abrupt nature of
the injury and the resulting damages were both typical
of tort claims and followed from the owner's breach of its
statutory duty to maintain the premises "in good repair,"
pursuant to N.Y. Mult. Dwell. Law § 78(1). Further, the
requirements to protect water supply pipes from freezing
temperatures and to install a flow alarm were part of a
comprehensive scheme of regulations designed to pro-
mote fire safety and to ensure the integrity of building
sprinkler systems for the protection of the general public.
OUTCOME: The order of the trial court which dis-
missed the sixth cause of action sounding in negligence
as being duplicative of the fifth cause of action for
breach of contract was reversed and the sixth cause of
action was reinstated.
CORE TERMS: cause of action, temperatures, freezing,
alarm, tort claims, sprinkler system, breach of contract,
contractual, abrupt, heat, pipe, statutory duty, duty to
maintain, resulting damages, good repair, contract claim,
general public, central station, duplicative, sprinkler,
landlord's, install, tenant, viable, burst, lease
LexisNexis(R) Headnotes
Page 36
Real Property Law > Landlord & Tenant > Lease
Agreements > Commercial Leases > General Overview
Real Property Law > Landlord & Tenant > Tenant's
Remedies & Rights > General Overview
[HN1] Generally, a tort cause of action that is based upon
the same facts underlying a contract claim will be dis-
missed as a mere duplication of the contract cause of ac-
tion particularly where both seek identical damages.
However, "borderland situations" have been identified
where a legal duty independent of contractual obligations
may be imposed by law as an incident to the parties' rela-
tionship.
HEADNOTES
Negligence--Violation of Statutory Duty.--Plaintiff,
commercial tenant in building owned and operated by
defendant, asserted viable tort cause of action in addition
to contractual cause of action based on allegation that de-
fendant reduced heat in building allowing freezing tem-
peratures to cause sprinkler pipe to burst and resulting in
plaintiff's damages; abrupt nature of injury and resulting
damages were "both typical of tort claims" and followed
from landlord's breach of its statutory duty under Mul-
tiple Dwelling Law § 78 (1) to maintain premises "in
good repair."
COUNSEL: Pryor Cashman Sherman & Flynn LLP,
New York (Joseph Z. Epstein and James S. O'Brien, Jr.
of counsel), for appellant.
Hoey, King, Toker & Epstein, New York (Jeffrey D.
Greenberg of counsel), for respondent.
JUDGES: Concur--Tom, J.P., Friedman, Sullivan, Cat-
terson and Malone, JJ.
OPINION
[**189] [***231] Order, Supreme Court, New
York County (Emily Jane Goodman, J.), entered on or
about February 23, 2004, which, to the extent appealed
from as limited by the briefs, granted defendant's pre-an-
swer motion to dismiss the sixth cause of action sound-
ing in negligence as being duplicative of the fifth cause
of action for breach of contract, unanimously reversed,
on the law, without costs, the motion denied, and the
sixth cause of action reinstated.
Plaintiff is a commercial tenant in a building owned
and operated by defendant. The complaint alleges that
defendant [**190] reduced the heat in the building and
that freezing temperatures caused a sprinkler pipe to
 Page 37

burst, resulting in $ 500,000 in damages to plaintiff's
property on the ninth and tenth floors. The fifth cause of
action seeks damages for breach of contract and the sixth
cause of action seeks damages for negligence. Both al-
lege that defendant failed "to maintain in good working
order and repair . . . plumbing . . . and ventilating sys-
tems" on the premises, to maintain adequate heat, and to
install and maintain a flow alarm on the sprinkler system.
Damages in the amount of $ 500,000 are sought in each
instance. Concluding that defendant's duty to plaintiff
arose solely under the lease, Supreme Court dismissed
the negligence cause of action as duplicative of the con-
tract cause of action (CPLR 3211).
Plaintiff contends that the duties implicated by its
negligence cause of action arise not from defendant's vi-
olation of obligations imposed by the lease but from
those imposed by statute, specifically, the duty to main-
tain the premises in reasonably safe condition and to pro-
tect the components of the sprinkler system from freez-
ing temperatures (Multiple Dwelling Law § 78; Building
Code [Administrative Code of City of NY] §§ 27-966,
27-949). Plaintiff argues that the duty upon which its
negligence claim rests is imposed by a statute designed
for the protection of the general public and, thus, may be
asserted in addition to its contract claim. We agree.
[HN1] Generally, a tort cause of action that is based
upon the same facts underlying a contract claim will be
dismissed as a mere duplication of the contract cause of
action (see Richbell Info. Servs. v Jupiter Partners, L.P.,
309 AD2d 288, 305, 765 NYS2d 575 [2003]), particularly
where, as here, both seek identical damages (see McMa-
han & Co. v Bass, 250 AD2d 460, 462, 673 NYS2d 19
[1998], lv denied and dismissed 92 NY2d 1013 [*2] ,
684 NYS2d 484, 707 NE2d 439 [1998]). However, the
Court of Appeals has identified "borderland situations"
where "[a] legal duty independent of contractual obliga-
tions may be imposed by law as an incident to the
parties' relationship" (Sommer v Federal Signal Corp.,
79 NY2d 540, 551, 593 NE2d 1365, 583 NYS2d 957
[1992]; see also New York Univ. v Continental Ins. Co.,
87 NY2d 308, 316-317, 639 NYS2d 283, 662 N.E.2d 763
[1995]). In Sommer, a building owned by 810 Associates
sustained damages when a fire went undetected because
the company that monitored the building's alarms had
negligently taken them out of service (79 NY2d at 548-
549). 810 [***232] Associates had contracted with
Holmes Protection, Inc. to provide central station monit-
oring services. The Court held that "810's claims against
Holmes are not limited to breach of contract but may
also sound in tort" (id. at 552). The Court reasoned that
the nature of the injury removes the claim from the un-
derlying contract. The Court noted that New York
[**191] City fire regulations provide penalties for fail-
ure to transmit alarms and to provide qualified central
station operators; that the service provided is a signific-
ant public benefit; and that catastrophic consequences
may result from the failure to perform the service with
care (id. at 552-553). Moreover, the injury is typical of a
tort claim both in respect to the manner in which it oc-
curred and in the harm that resulted. Finally, the owner
sought to recover not the benefit of its contractual bar-
gain but damages resulting from an " 'abrupt, cataclysmic
occurrence' " (id. at 553, quoting Bellevue S. Assoc. v
HRH Constr. Corp., 78 NY2d 282, 294, 579 NE2d 195,
574 NYS2d 165 [1991]).
Plaintiff has stated a viable tort claim pursuant to
Sommer. The abrupt nature of the injury and the resulting
damages are "both typical of tort claims" (id.) and follow
from landlord's breach of its statutory duty to maintain
the premises "in good repair" (Multiple Dwelling Law §
78 [1]). Further, the requirements to protect water supply
pipes from freezing temperatures and to install a flow
alarm are part of a comprehensive scheme of regulations
designed to promote fire safety and to ensure the integ-
rity of building sprinkler systems for the protection of the
general public. Concur--Tom, J.P., Friedman, Sullivan,
Catterson and Malone, JJ.

10 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

[*1] Edwin Flores et al., Respondents, v John Baroudos et al., Appellants, et al., De-
fendant. (And a Third-Party Action.)

2005-03577, (Index No. 35724/00)


SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-
PARTMENT
2006 NY Slip Op 1762; 27 A.D.3d 517; 811 N.Y.S.2d 757; 2006 N.Y. App. Div. LEXIS
2819
March 14, 2006, Decided
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant owners ap-
pealed an order by the Kings County Supreme Court
(New York) that denied their motion for summary judg-
ment in plaintiff injured minor's action to recover dam-
ages for personal injuries.
OVERVIEW: The owners leased their premises a tenant
to operate a record shop. A video game machine was
placed on a wheeled cart on the public sidewalk abutting
the premises. The minor was injured while playing the
video game when another boy banged into the machine,
causing it to fall on the minor. The appellate court found
that the minor presented no evidence that the owners re-
ceived a benefit from the tenant's use of the sidewalk.
Also, the lease placed responsibility on the tenant to
maintain the sidewalk, and the minor did not allege a vi-
olation of the Administrative Code of the City of New
York. Consequently, the trial court erred in denying the
owners' motion for summary judgment.
OUTCOME: The order was reversed, the motion was
granted, the complaint was dismissed, and the action
against the remaining defendant was severed.
CORE TERMS: public sidewalk, abutting, infant, video
game, sidewalk, landlord, machine, repair, shop's,
landowner, wheeled, playing, banged, cart, action to re-
cover, tenant, lease
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General
Premises Liability > Duties of Care > Duty off Premises
> Sidewalks & Streets
[HN1] An owner of land does not, solely by reason of
being an abutting owner, owe a duty to keep a public
sidewalk in a safe condition. Rather, liability may only
be imposed on the abutting landowner where the
landowner either (a) created the defective condition, (b)
voluntarily but negligently made repairs, (c) created the
defect through special use, or (d) violated a statute or or-
Page 38
dinance which expressly imposes liability on the abutting
landowner for failure to repair.
Torts > Premises Liability & Property > General
Premises Liability > Duties of Care > Duty off Premises
> Sidewalks & Streets
[HN2] An out-of-possession landlord cannot be held li-
able unless it exercises some control over a sidewalk or
is contractually obligated to repair unsafe conditions.
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Duty to
Inspect
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Duty to
Repair > General Overview
[HN3] In a general premises liability context, a land-
lord's reservation of the right to re-enter, inspect, and
make repairs, may subject the landlord to liability,
provided an injured plaintiff shows that the landlord
breached specific provisions of the Administrative Code
of the City of New York.
HEADNOTES
Negligence--Sidewalks.--Complaint was dismissed
against owners in action to recover for injuries sustained
by infant plaintiff--lessee operated record shop at
premises and placed video game machine on wheeled
cart on public sidewalk abutting premises; infant plaintiff
was injured while playing video game when another boy
banged into machine, causing it to fall on infant
plaintiff--plaintiffs presented no evidence that owners re-
ceived benefit from record shop's use of public sidewalk,
lease placed responsibility on tenant to maintain side-
walk and plaintiff did not allege violation of Administrat-
ive Code of City of New York.
COUNSEL: Laykind & Summers, Franklin Square,
N.Y. (Allan D. Summers of counsel), for appellants.
Mirman, Markovits & Landau, P.C., New York, N.Y.
(Scott Wunderlich of counsel), for respondents.
 Page 39

JUDGES: THOMAS A. ADAMS, J.P., DAVID S.
RITTER, FRED T. SANTUCCI, ROBERT J. LUNN, JJ.
ADAMS, J.P., RITTER, SANTUCCI and LUNN, JJ.,
concur.
OPINION
[***758] [**517] In an action to recover damages
for personal injuries, etc., the defendants John Baroudos
and Anna Baroudos appeal from so much of an order of
the Supreme Court, Kings County (F. Rivera, J.), dated
March 11, 2005, as denied that branch of their motion
which was for summary judgment dismissing the com-
plaint insofar as asserted against them.
Ordered that the order is reversed insofar as ap-
pealed from, on the law, with costs, the motion is gran-
ted, the complaint is dismissed insofar as asserted against
the appellants, and the action against the remaining de-
fendant is severed.
John Baroudos and Anna Baroudos (hereinafter the
appellants) owned premises located at 5814 Fifth Aven-
ue in Brooklyn, which they leased to Angelo Chino.
Chino operated the Ricky Record Shop at the premises.
A video game machine was placed on a wheeled cart on
the public sidewalk abutting the premises. The infant
plaintiff was injured while playing the video game when
another boy banged into the machine, causing it to fall on
the infant plaintiff. [HN1] An owner of land does not,
solely by reason of being an abutting owner, owe a duty
to keep the public sidewalk in a safe condition. Rather,
"[l]iability may only be imposed on the abutting
landowner where the landowner either (a) created the de-
fective condition, (b) voluntarily [*2] but negligently
made repairs, (c) created the defect through special use,
or (d) violated a statute or ordinance which expressly im-
poses liability on the abutting landowner for failure to re-
pair" (Loforese v Cadillac [**518] Fairview Shopping
Ctrs., U.S., 235 AD2d 399, 399-400, 652 NYS2d 84
[1997]; see Cahill v Foodland Deli of L.I., 270 AD2d
445, 705 NYS2d 299 [2000]). Additionally, as [HN2] an
out-of-possession landlord, the appellants cannot be held
liable unless they exercised some control over the side-
walk or were contractually obligated to repair unsafe
conditions (see Dufficy v Wharf Bar & Grill, 217 AD2d
646, 629 NYS2d 808 [1995]). [HN3] A landlord's reser-
vation of the right to re-enter, inspect, and make repairs,
may subject a landlord to liability, provided the plaintiff
shows that the landlord breached specific provisions of
the Administrative Code of the City of New York (id.).
The appellants established their prima facie entitle-
ment to judgment as a matter of law. In opposition, the
plaintiffs failed to present evidence sufficient to raise a
triable issue of fact as to the appellants' liability. The
plaintiffs presented no evidence that the owners received
a benefit from the record shop's use of the public side-
walk. Also, the lease placed responsibility on the tenant
to maintain the sidewalk and the plaintiff did not allege a
violation of the Administrative Code of the City of New
York. Adams, J.P., Ritter, Santucci and Lunn, JJ., concur.

11 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

[*1] Francine Cannizzaro et al., Appellants, v Simco Management Co. et al., Re-
spondents, et al., Defendant.

2004-07662

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

2006 NY Slip Op 1271; 26 A.D.3d 401; 809 N.Y.S.2d 196; 2006 N.Y. App. Div. LEXIS
2158

February 21, 2006, Decided


CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff pedestrian ap-
pealed an order by the Nassau County Supreme Court
(New York) that granted a summary judgment motion by
defendant owner/occupiers in the pedestrian's action to
recover damages for personal injuries.
OVERVIEW: The pedestrian allegedly sustained per-
sonal injuries when she tripped and fell on a "cracked"
public sidewalk that abutted the owner/occupiers' com-
mercial premises. The appellate court found no evidence
that the owner/occupiers either created the alleged de-
fect, negligently repaired the sidewalk prior to the acci-
dent, caused the defect through some special use of the
sidewalk, or violated a statute or ordinance that imposed
liability on the abutting entity for failure to repair the al-
leged defective condition. Consequently, they demon-
strated their entitlement to judgment as a matter of law.
The conclusion by the pedestrians' expert that the alleged
defect was caused by vehicular traffic using the sidewalk
as a driveway was entirely speculative and insufficient to
raise a factual issue precluding summary relief.
OUTCOME: The order was affirmed.
CORE TERMS: abutting, sidewalk, landowner, tenant,
public sidewalk, special use, ordinance, elements neces-
sary, impose liability, defective condition, negligently, re-
paired, entity, repair, commercial premises, personal in-
juries, subleased, tripped, cracked
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN1] As a general rule, a landowner or tenant will not
be liable to a pedestrian injured by a defect in a public
sidewalk abutting its premises. However, an abutting
landowner or tenant will be liable if it either created the
defect, caused it to occur by a special use, or breached a
specific ordinance or statute that obligates the owner to
maintain the sidewalk.
HEADNOTES
Negligence--Sidewalks.--In action by plaintiff, who
was injured when she tripped and fell on "cracked" pub-
lic sidewalk abutting commercial premises subleased to
one defendant by second defendant and owned by third
defendant, complaint was dismissed against defendants
since none of elements necessary to impose liability
Page 40
upon abutting landowner or tenant were present; there
was no evidence that they either created alleged defect,
negligently repaired sidewalk prior to accident, caused
defect through some special use of sidewalk, or violated
statute or ordinance that imposed liability on abutting en-
tity for failure to repair alleged defective condition.
COUNSEL: Crafa & Scofield, P.C., Rockville Centre,
N.Y. (Joseph R. Crafa of counsel), for appellants.
Curtis, Vasile, Devine & McElhenny, Merrick, N.Y. (Pa-
tricia M. D'Antone of counsel), for respondents Simco
Management Co. and Avis Service, Inc.
Epstein, Grammatico, Frankini & Marotta, Woodbury,
N.Y. (Michael Callari III of counsel), for respondent
Westbury Garden Center.
JUDGES: STEPHEN G. CRANE, J.P., REINALDO E.
RIVERA, STEVEN W. FISHER, MARK C. DILLON,
JJ. CRANE, J.P., RIVERA, FISHER and DILLON, JJ.,
concur.
OPINION
[**401] [***197] In an action to recover damages
for personal injuries, etc., the plaintiffs appeal from an
order of the Supreme Court, Nassau County (Joseph, J.),
entered August 2, 2004, which granted the motion of the
defendants Simco Management Co. and Avis Service,
Inc., and the separate motion of the defendant Westbury
Garden Center, for summary judgment dismissing the
complaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of
costs payable to the respondents appearing separately
and filing separate briefs.
The plaintiff Francine Cannizzaro allegedly sus-
tained personal injuries when she tripped and fell on a
"cracked" public sidewalk. The incident occurred in
Hempstead, abutting commercial premises subleased to
the defendant Westbury Garden Center (hereinafter West-
bury) by the defendant Avis Service, Inc. (hereinafter
Avis), and owned by the defendant Simco Management
Co. (hereinafter Simco).
[*2] [HN1] As a general rule, a landowner or tenant
will not be liable to a pedestrian injured by a defect in a
public sidewalk abutting its premises (see Hausser v Gi-
unta, 88 NY2d 449, 452-453, 669 NE2d 470, 646 NYS2d
490 [1996]; [**402] Sammarco v City of New York, 16
AD3d 657, 658, 794 NYS2d 54 [2005]). However, an
abutting landowner or tenant will be liable if it either
"created the defect, caused it to occur by a special use, or
breached a specific ordinance or statute which obligates
the owner to maintain the sidewalk" (Jeanty v Benin, 1
 Page 41

AD3d 566, 567, 767 NYS2d 447 [2003]; see Lowenthal v
Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726,
759 NYS2d 497 [2003]).
The defendants Simco, Avis, and Westbury demon-
strated their entitlement to judgment as a matter of law
by presenting evidence that none of the elements neces-
sary to impose liability upon an abutting landowner or
tenant are present. There was no evidence that they either
created the alleged defect, negligently repaired the side-
walk prior to the accident, caused the defect through
some special use of the sidewalk, or violated a statute or
ordinance that imposed liability on the abutting entity for
failure to repair the alleged defective condition (see
Lowenthal v Theodore H. Heidrich Realty Corp., supra).
In opposition, the plaintiffs failed to raise a triable issue
of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 501
NE2d 572, 508 NYS2d 923 [1986]; Sammarco v City of
New York, supra). Neither the plaintiffs nor the plaintiffs'
expert ever observed vehicles entering or leaving the
abutting property. The conclusion by the plaintiffs' expert
that the alleged defect was caused by vehicular traffic us-
ing the sidewalk as a driveway, now or in the past, was
entirely speculative and insufficient to raise a factual is-
sue precluding summary relief. (see Patti v Town of N.
Hempstead, 23 AD3d 362, 806 NYS2d 93 [2005]; Banks
v Freeport Union Free School Dist., 302 AD2d 341, 342,
753 NYS2d 890 [2003]; cf. Tate v Freeport Union School
Dist., 7 AD3d 695, 696, 777 NYS2d 188 [2004]).
The plaintiffs' remaining contentions are without
merit. Crane, J.P., Rivera, Fisher and Dillon, JJ., concur.

12 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

[*1] Fred Zvinys et al., Appellants, v Richfield Investment Company et al., Re-
spondents. (And a Third-Party Action.) Index 105925/02, 591456/03

7503-, 7504

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

2006 NY Slip Op 98; 25 A.D.3d 358; 808 N.Y.S.2d 640; 2006 N.Y. App. Div. LEXIS 98

January 5, 2006, Decided

January 5, 2006, Entered

SUBSEQUENT HISTORY: PROCEDURAL POSTURE: Plaintiff, an injured fire-

Appeal denied by Zvinys v. Richfield Inv. Co., 2006 N.Y.
App. Div. LEXIS 4430 (N.Y. App. Div. 1st Dep't, Apr. 11,
2006)
Appeal denied by Zvinys v. Richfield Inv. Co., 7 NY3d
706, 853 NE2d 244, 2006 N.Y. LEXIS 1881, 819 NYS2d
873 (N.Y., July 5, 2006)
PRIOR HISTORY: Zvinys v. Richfield Inv. Co., 2005
N.Y. App. Div. LEXIS 7696 (N.Y. App. Div. 1st Dep't, July
7, 2005)
CASE SUMMARY:
fighter and others, appealed orders of the Supreme Court,
New York County (New York), that granted summary
judgment dismissing the firefighter's N.Y. Gen. Mun.
Law § 205-a action against defendant property owners
and that granted defendant lessee's motion to set aside a
jury verdict in favor of the firefighter and dismissed the
complaint.
OVERVIEW: The evidence indicated that the fire in
which the firefighter had been injured had been caused
by a poorly maintained power strip that could easily have
been replaced. There was evidence of a violation of New
York City, N.Y., Admin. Code § 27-127, but it had not
caused the fire. The court held, first, that the firefighter
 Page 42

had made no showing whatsoever that the owners, the Civil Procedure > Summary Judgment > Supporting
lessors of the property where the fire occurred, had viol- Materials > General Overview
ated any statutes or ordinances, so they could not be li- [HN3] On motion for summary judgment, an affidavit
able. The lessee, a travel agency, appeared to have negli- that is speculative and conclusory is insufficient to raise
gently caused the fire, but not by violating any code pro- an issue of fact.
visions that applied to it. Without a violation, there could
be no liability under N.Y. Gen. Mun. Law § 205-a.
Real Property Law > Landlord & Tenant > Lease
OUTCOME: The court affirmed the orders and judg- Agreements > Commercial Leases > General Overview
ment. Torts > Negligence > Proof > Violations of Law >
Safety Codes
CORE TERMS: strip, alarm, indirectly, breaker's, code [HN4] New York City, N.Y., Admin. Code § 27-127 is
violations, negligent conduct, summary judgment, issue not applicable to lessees.
of fact, deposition testimony, overloading, firefighter,
overloaded, removable, manager, tenant, notice, lessees, HEADNOTES
wiring, ambit, smoke
Negligence--Violation of Statutory Duty.--Com-
plaint was dismissed in action alleging claim under Gen-
LexisNexis(R) Headnotes
eral Municipal Law § 205-a--defendants, owners and
manager of premises, established that fire arose out of
activities of tenant in overloading single power strip in
equipment room, over which defendants exercised no
Civil Procedure > Pleading & Practice > Pleadings >
control and had no notice, and that plaintiff's injuries
Heightened Pleading Requirements
were not caused by any Building Code violations or neg-
Governments > Local Governments > Employees & Of-
ligent conduct attributable to defendants--Building Code
ficials
provision on which plaintiff predicated claim (Adminis-
Torts > Negligence > Proof > Violations of Law > Gen-
trative Code of City of NY § 27-127) was not applicable
eral Overview
to lessees, and evidence demonstrated that fire was
[HN1] To make out a valid claim under N.Y. Gen. Mun.
caused by lack of proper maintenance of overloaded
Law § 205-a, a plaintiff must identify the statute or or-
power strip, which was easily removable and not part of
dinance with which the defendant failed to comply, de-
building's wiring system, and did not fall within ambit of
scribe the manner in which the firefighter was injured,
section 27-127.
and set forth those facts from which it may be inferred
that the defendant's negligence directly or indirectly
COUNSEL: Sullivan Papain Block McGrath & Can-
caused the harm to the firefighter.
navo, P.C., New York (Stephen C. Glasser of counsel),
for appellants.
Civil Procedure > Summary Judgment > Burdens of
Callan, Koster, Brady & Brennan, New York (Michael P.
Production & Proof > General Overview
Kandler of counsel), for Richfield Investment Company,
Governments > Local Governments > Employees & Of-
Shipcentral Realty, Inc., and Williamson, Pickett, Gross,
ficials
Inc., respondents.
Torts > Negligence > Causation > Proximate Cause >
General Overview
Law Office of John P. Humphreys, Melville (Scott W.
Torts > Negligence > Proof > Violations of Law > Gen-
Driver of counsel), for DMS Travel, Inc., respondent.
eral Overview
[HN2] On a motion for summary judgment to dismiss a
JUDGES: Concur--Andrias, J.P., Saxe, Nardelli and Cat-
N.Y. Gen. Mun. Law § 205-a claim, the defendant bears
terson, JJ.
the initial burden of showing either that it did not negli-
gently violate any relevant government provision, or, if it
OPINION
did, that the violation did not directly or indirectly cause
the plaintiff's injuries. Only if the defendant sustains this [**359] [***642] Order, Supreme Court, New
burden must the plaintiff raise a triable issue of fact as to York County (Richard F. Braun, J.), entered August 26,
whether the alleged code violations directly or indirectly 2004, insofar as it granted summary judgment dismissing
caused his injuries. the complaint against defendants Richfield Investment,
Shipcentral Realty, and Williamson, Picket, Gross (col-
lectively, the Richfield defendants), and order, same

court and Justice, entered February 6, 2005, which gran-
ted defendant DMS Travel's motion to set aside the jury
verdict in plaintiff's favor and dismissed the complaint,
unanimously affirmed, without costs.
[HN1] To make out a valid claim under General
Municipal Law § 205-a, a plaintiff must "identify the
statute or ordinance with which the defendant failed to
comply, describe the manner in which the firefighter was
injured, and set forth those facts from which it may be
inferred that the defendant's negligence directly or indir-
ectly caused the harm to the firefighter" (Zanghi v
Niagara Frontier Transp. Commn., 85 NY2d 423, 441,
649 NE2d 1167, 626 NYS2d 23 [1995]). [HN2] On a mo-
tion for summary judgment to dismiss a § 205-a claim,
the defendant bears the initial burden of showing either
that it did not negligently violate any relevant govern-
ment provision, or, if it did, that the violation did not dir-
ectly or indirectly cause the plaintiff's injuries. Only if
the defendant sustains this burden must the plaintiff raise
a triable issue of fact as to whether the alleged code viol-
ations directly or indirectly caused his injuries (see Giuf-
frida v Citibank Corp., 100 NY2d 72, 82, 790 NE2d 772,
760 NYS2d 397 [2003]).
The Richfield defendants, who were the owners and
manager of the premises, sustained their burden of proof
by submitting deposition testimony and other admissible
evidence establishing that the fire arose out of the activit-
ies of the tenant, defendant DMS, in overloading a
single power strip in the equipment room, over which the
Richfield defendants exercised no [*2] control and had
no notice; and that plaintiff's injuries were not caused by
any building code violations or negligent conduct attrib-
utable to the Richfield defendants (see Lustenring v 98-
100 Realty, 1 AD3d 574, 768 NYS2d 20 [2003], lv dis-
missed and denied 2 NY3d 791, 814 NE2d 448, 781
13 of 55 DOCUMENTS
Cited
As of: Sep 10, 2008
[*1] Samuel Boateng, Respondent, v Four Plus Corporation et al., Appellants. Index
16796/02
6757
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-
MENT
Page 43
NYS2d 277 [2004]).
Plaintiff failed to rebut this showing. [HN3] The af-
fidavit of plaintiff's expert was speculative and conclus-
ory, and thus insufficient to raise an issue of fact (see
Bucholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 831
NE2d 960, 798 NYS2d 715 [2005]; Santoni v Bertels-
mann Prop., Inc., 21 AD3d 712, 800 NYS2d 676 [2005];
Bean v Ruppert Towers Hous. Co., 274 AD2d 305, 710
NYS2d 575 [2000]). The expert never visited the
premises or [**360] inspected the circuit breakers that
he alleged were deficient or defective. There was no de-
position testimony or Fire Department report addressing
the circuit breaker's condition or suitability, and the ex-
pert did not cite any statutes, codes or industry standards
[***643] allegedly violated with respect to the circuit
breakers. Nor did the expert inspect the smoke alarm sys-
tem or cite any specific code sections regarding smoke
alarms that were violated. The fact that a person noticed
the fire before it was detected by the alarms in the central
hallway is insufficient, in and of itself, to create an infer-
ence that the fire alarms were not operating. Nor is there
anything that indicates a delay in that person discovering
or reporting the fire, so as to exacerbate the conditions
plaintiff faced at the scene.
The Building Code provision on which plaintiff pre-
dicates his § 205-a claim ([HN4] Administrative Code of
City of NY § 27-127) is not applicable to lessees (Beck v
Woodward Affiliates, 226 AD2d 328, 330, 640 NYS2d
205 [1996]). Moreover, the evidence at trial demon-
strates that the fire was caused by a lack of proper main-
tenance of the overloaded power strip, which was easily
removable and not part of the building's wiring system,
and does not fall within the ambit of section 27-127.
Concur--Andrias, J.P., Saxe, Nardelli and Catterson, JJ.
 Page 44

2005 NY Slip Op 7601; 22 A.D.3d 322; 802 N.Y.S.2d 418; 2005 N.Y. App. Div. LEXIS
10910

October 13, 2005, Decided

October 13, 2005, Entered

CASE SUMMARY: plaintiff, to raise an issue of fact as to whether the land-

lord had constructive notice of and was responsible for
remediating an alleged hazard, is required to show that
PROCEDURAL POSTURE: Appellant landlords ap- the purported hazard constituted a structural or design
pealed the order of the Supreme Court, Bronx County defect that violated a specific statutory provision.
(New York), denying their motion for summary judgment
in plaintiff tenant's action seeking to recover for personal HEADNOTES
injuries.
Negligence--Maintenance of Premises.--Defendants,
out-of-possession landlords who retained right of reentry
OVERVIEW: The landlords were out-of-possession
to inspect and make repairs, were entitled to summary
landlords who retained no more than a right of reentry to
judgment dismissing complaint since tenant was re-
inspect and make repairs. Full responsibility for mainten-
sponsible for maintenance and repair of leased premises
ance and repair of the lease premises was placed with the
where plaintiff was injured, and defendants did not have
tenant under the governing lease. As a result, the tenant,
constructive notice of alleged hazard--crumbling cement
in order to raise an issue of fact as to whether the land-
on garage ceiling, alleged to have caused plaintiff's harm,
lords had constructive knowledge of and were respons-
had no structural or design function, and plaintiff failed
ible for remediating the allegedly hazard, had to show
to identify specific statutory violation.
that the purported hazard constituted a structural design
defect that violated a specific statutory provision. The re-
COUNSEL: Law Office of Steven G. Fauth, New York
cord evidence established that the crumbling cement on
(Jason B. Rosenfarb of counsel), for appellants.
the garage ceiling, alleged to have caused the tenant's
harm, had no structural or design function. It was merely
Brecher Fishman Pasternack Popish Heller Reiff &
coating for steel beams. The tenant's assertion that an en-
Walsh, P.C., New York (Frank Gulino of counsel), for re-
gineer was to testify that the crumbling cement violated
spondent.
general safety provisions of the New York City, New
York, Building Code was insufficient to forestall sum-
JUDGES: Concur--Andrias, J.P., Friedman, Sullivan and
mary judgment because no specific statutory violation
Gonzalez, JJ.
was identified.
OPINION
OUTCOME: The order was modified insofar as the mo-
tion seeking summary judgment dismissing the com- [**323] [***419] Order, Supreme Court, Bronx
plaint against the corporation and bank was granted. The County (Kenneth L. Thompson, J.), entered April 12,
order was otherwise affirmed. 2005, which denied defendants' motion for summary
judgment, unanimously modified, on the law, to the ex-
CORE TERMS: summary judgment, landlords, repair, tent of granting so much of the motion as seeks summary
crumbling, hazard, cement, leased premises, statutory vi- judgment dismissing the complaint as against defendants
olation, out-of-possession, constructive, reentry, inspect, Four Plus Corporation and Chase Manhattan Bank, N.A.,
ceiling, tenant, notice, garage, Compensation Law and otherwise affirmed, without costs.
The uncontradicted facts in the record show that the
LexisNexis(R) Headnotes
defendants Four Plus Corporation and Chase Manhattan
Bank, N.A., were out-of-possession landlords who re-
tained no more than a right of reentry to inspect and
make repairs. Full responsibility for maintenance and re-
Real Property Law > Landlord & Tenant > Landlord's
pair of the leased premises had, under the governing
Remedies & Rights > Power to Reenter & Terminate
lease, been placed with the tenant. [HN1] In light of the
Torts > Premises Liability & Property > Lessees &
landlords' out-of possession status, plaintiff, to raise an
Lessors > General Overview
issue of fact as to whether the landlords had constructive
[HN1] Where a landlord has out-of possession status, a
 Page 45

notice of and were responsible for remediating the al-
leged hazard, [**324] was required to show that the
purported hazard constituted a structural or design defect
that violated a specific statutory provision (see Pavon v
Rudin, 254 AD2d 143, 146-147, 679 NYS2d 27 [1998]).
The record evidence, including photographs and depos-
ition testimony, established that the crumbling cement on
the garage ceiling, alleged to have caused plaintiff's
harm, had no structural or design function, but was
merely coating for steel beams. Plaintiff's assertion that a
potential engineer witness would testify that the crum-
bling cement violated general safety provisions of the
New York City Building Code (i.e., Administrative Code
of the City of NY §§ 27-127, 27-128) was insufficient to
forestall summary judgment since, inter alia, no specific
statutory violation was identified (see Dixon v Nur-Hom
Realty Corp., 254 AD2d 66, 67, 678 NYS2d 613 [1998]).
Defendant 5711 Parking Corporation's (5711) claim
of entitlement to summary judgment based on its Work-
ers' Compensation Law defense was properly rejected.
Based on the record as it now stands, we cannot determ-
ine as a matter of law [*2] that 5711 is free of liability
based on the Workers' Compensation Law. Concur--An-
drias, J.P., Friedman, Sullivan and Gonzalez, JJ.

14 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

Ricardo Torres et al., Respondents-Appellants, v West Street Realty Company et al.,

Appellants-Respondents. West Street Realty Company et al., Third-Party Plaintiffs,
v Tobin Home Fashions, Inc., Third-Party Defendant, and Apartment Furniture
Rentals Associates, Third-Party Defendant-Appellant-Respondent.

5569

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

21 A.D.3d 718; 800 N.Y.S.2d 683; 2005 N.Y. App. Div. LEXIS 8864

September 1, 2005, Decided

September 1, 2005, Entered

SUBSEQUENT HISTORY: [***1]
Reargument denied by Torres v W. St. Realty Co., 2006
NY App Div LEXIS 2012 (1st Dept, Feb. 14, 2006)
Appeal denied by Torres v W. St. Realty Co., 7 NY3d
703, 853 NE2d 241, 819 NYS2d 870, 2006 NY LEXIS
1492 (2006)
PRIOR HISTORY: Torres v W. St. Realty Co., 2004 NY
App Div LEXIS 12420 (1st Dept, Oct. 19, 2004)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff, a worker, sued
defendants, building owners and operators, seeking to re-
cover for personal injuries. The Supreme Court, Bronx
County (New York), denied the landlord's motions for
summary judgment as to negligence claims. The landlord
appealed the judgment.
OVERVIEW: The worker claimed that he fell on ice in
the warehouse in question, causing multiple fractures.
The trial court denied the landlord's summary judgment
motions as to negligence claims after finding that the
landlord had created the hazardous condition that led to
the accident by reason of faulty design and construction
of the loading dock. The appellate court held that there
could be no valid argument that the out-of-possession
landlord had actual notice of the allegedly slippery con-
dition. As to constructive notice, an out-of-possession
owner who retained the right to reenter the premises for
repairs and inspections could not be held liable under a

theory of constructive notice in the absence of a signific-
ant structural or design defect that was contrary to a spe-
cific safety provision. The worker's expert did not state
that it was improper to design a ramp on a downward
slope, that the angle of the slope was excessive, or that
the construction of the ramp on a downward slope viol-
ated any statute or constituted a significant structural de-
fect. Thus, constructive notice was not shown, and the
trial court should have granted the landlord's motions for
summary judgment.
OUTCOME: The order was reversed, on the law,
without costs or disbursements, the motions for summary
judgment were granted, and the complaint was dis-
missed.
CORE TERMS: loading docks, truck, snow, dock, plat-
form, warehouse, repair, loading, tenant, out-of-posses-
sion, top, constructive notice, landlord, slope, structural
defect, summary judgment, driveway, downward, non-
slip, drainage, removal, sloped, angle, flaps, ice, snow
ice, lighting, surface, lease, dangerous condition
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General
Premises Liability > General Overview
Torts > Products Liability > Design Defects
[HN1] As to constructive notice, it is well settled that an
out-of-possession owner who retained the right to reenter
the premises for repairs and inspections cannot be held
liable under a theory of constructive notice in the ab-
sence of a significant structural or design defect that is
contrary to a specific safety provision.
HEADNOTES
Negligence--Maintenance of Premises Defendant,
out-of-possession landlord who had hired contractor to
design and build warehouse loading docks in accordance
with general requirements of defendant tenant, had no
actual or constructive notice of allegedly slippery condi-
tion on warehouse loading platform where plaintiff, em-
ployee of tenant, was injured; tenant occupied ware-
house and was responsible for removal of water, snow
and ice from loading dock; landlord never inspected or
entered premises to perform maintenance or repairs, and
never received any complaints with respect to snow, ice
or water on dock or inadequate lighting; plaintiffs' exper-
t's testimony, asserting that loading docks were defect-
ively designed and dangerous due to slope of driveway,
absence of safety surface along edge of dock platform,
and lack of rubberized flaps above entrance to warehouse
Page 46
to brush snow off tops of truck entering dock, did not
show statutory violation or significant structural defect.
Concur--Buckley, P.J., Mazzarelli, Friedman, Mar-
low and Sullivan, JJ.
COUNSEL: Smith Mazure Director Wilkins Young &
Yagerman, P.C., New York (David A. Glazer of counsel),
for West Street Realty Company appellants-respondents.
Savona & Scully, New York (Raymond M. D'Erasmo of
counsel), for Apartment Furniture Rentals Associates, ap-
pellant-respondent.
The Pagan Law Firm, P.C., New York (Beth N. Jablon of
counsel), for respondents-appellants.
JUDGES: Buckley, P.J., Mazzarelli, Friedman, Marlow,
Sullivan, JJ.
OPINION
[*719] [**684] Order, Supreme Court, Bronx
County (Barry Salman, J.), entered on or about February
4, 2004, which, insofar as it denied the motions of de-
fendant West Street Realty Company and its partners,
Frank Carrano, Blanche Goldberg and Jeanette Sherkin
(West Street) and third-party defendant Apartment Fur-
niture Rentals (Rentals) for summary judgment dismiss-
ing plaintiffs' negligence claims, unanimously reversed,
on the law, without costs or disbursements, the motions
for summary judgment granted and the complaint dis-
missed. The Clerk is directed to enter judgment accord-
ingly.
West Street leased a warehouse to Rentals pursuant
to a lease requiring [***2] the lessor to build four interi-
or loading docks and modify another in accordance with
the general requirements of Rentals. West Street hired
and paid a contractor to do the work. Under the lease,
other than specified repairs to the electric, plumbing,
sprinkler, heating systems and roof, as well as structural
repairs to the exterior walls, foundation and steel fram-
ing, Rentals was responsible for the repair and mainten-
ance of the premises. West Street also had the right of
entry for the purpose of inspection, repairs, compliance
with governmental orders and showing the premises to
prospective buyers or tenants. Article 48 of the lease
("Owner's Liability") provided, in part: "Except by reas-
on of their willful misfeasance or gross negligence, Own-
er . . . shall not be liable to Tenant, Tenant's agent and
employees . . . for any injury to person . . . because of
failure to repair, defect in, or failure of, equipment, . . . or
by . . . water, snow, ice . . . leaking, escaping or flowing
into the Demised Premises."
Plaintiff Ricardo Torres, employed by Rentals as a

truck driver, alleges that on the snowy morning of Febru-
ary 4, 1995, after retrieving his 24-foot truck from an
outdoor parking [***3] lot and clearing snow from its
windshield and mirrors, he drove to Rentals' warehouse
and backed the truck, the top of which was still covered
with snow, into indoor loading bay # 2. The loading dock
was recessed and completely within the premises. The
docking bay sloped downward so that when a truck is
fully backed in, its rear would be at the same level as the
platform [*720] and its front higher. As a result of this
configuration, once the snow on top of the truck began to
melt in the heated warehouse, it slid off the back of the
truck and onto the platform. When the injured plaintiff
returned to the loading platform, after loading his truck
and getting the necessary paperwork, he slipped on the
slush and water that had accumulated on the dock, caus-
ing him to fall to the concrete floor and to sustain mul-
tiple fractures. Although a wet condition existed on the
dock every time it snowed, he never complained to any-
one on the day of the accident or at any time before. Nor
did he clean the loading dock on the day of the accident.
He had no trouble with the lighting conditions in the
loading dock area. West Street did not have offices in the
warehouse, and once Rentals took possession, West
[***4] Street never inspected or entered the premises to
perform maintenance or repairs; on occasion, a repres-
entative went there to collect [**685] rent. Rentals was
responsible for the removal of water, snow and ice from
the loading dock. West Street never received any com-
plaints with respect to snow, ice or water on the dock or
inadequate lighting.
In this personal injury action, plaintiffs asserted
causes of action based on negligence and Labor Law vi-
olations. West Street answered and impleaded Rentals,
seeking common-law/contractual indemnification or con-
tribution. In opposition to West Street's and Rentals' mo-
tions for summary judgment, plaintiffs submitted an affi-
davit from an expert who asserted that the loading docks
were defectively designed and dangerous due to the ab-
sence of a textured, non-slip, safety surface running
along the edge of the dock platform. The expert further
cited the absence of a floor surface drainage system/run-
off on the dock, and of rubberized flaps above the en-
trance to the warehouse that would have brushed snow
off the tops of the trucks entering the dock before the
snow could melt and fall off the truck onto the dock plat-
form.
Supreme Court dismissed plaintiffs' [***5] Labor
Law § 240 (1) and § 241 (6) claims on the ground that
the driver was not engaged in a protected activity. Al-
though finding that West Street was an out-of-possession
landlord, that Rentals had assumed responsibility for
maintenance of the loading dock, including the removal
of snow and ice, and that West Street had no notice of the
Page 47
wet condition complained of, the court denied summary
dismissal of the negligence claims because plaintiffs' ex-
pert witness demonstrated that West Street had created
the hazardous snow/water condition that led to the acci-
dent by reason of faulty design and construction of the
loading dock. It further found that West Street's chal-
lenge to the sufficiency and validity of [*721] the exper-
t's report merely created an issue of fact. The motions for
summary judgment dismissing the complaint should
have been granted.
On this record, there can be no valid argument that
West Street, an out-of-possession landlord, had actual
notice of the allegedly slippery condition of the loading
platform. [HN1] As to constructive notice, "It is well
settled that an out-of-possession owner who retained the
right to reenter the premises for repairs [***6] and in-
spections cannot be held liable under a theory of con-
structive notice in the absence of 'a significant structural
or design defect that is contrary to a specific safety pro-
vision'" (McDonald v Riverbay Corp., 308 AD2d 345,
346, 764 NYS2d 185 [2003]; see Lopez v 1372
Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d
230, 750 NYS2d 44 [2002]). While plaintiffs' expert
claims that "due to the angle of the sloped driveway,
snow slid from the top of [plaintiff's] truck to the loading
dock, melted and became a mixture of water and snow,"
and that flaps could have wiped snow off the trucks be-
fore the truck entered the dock, he does not state that it
was improper to design a ramp on a downward slope,
that the angle of the slope was excessive, or that the con-
struction of the ramp on a downward slope violated any
statute or constituted a significant structural defect. Nor
does he state that the absence of a non-slip border and
drainage system violated any statute or significantly af-
fected the structural integrity of the loading docks. Thus,
constructive notice of a defective condition has not been
shown (see Nunez v Alfred Bleyer & Co., 304 AD2d 734,
757 NYS2d 798 [2003]). [***7]
While liability may attach to an out-of-possession
owner who has affirmatively created a dangerous condi-
tion or defect (see Stickles v Fuller, 9 AD3d 599, 780
NYS2d 649 [2004]), the claims of plaintiffs' expert do
not create an issue of fact in that respect. As noted, his
assertions [**686] as to the angle of the sloped driveway
notwithstanding, no statutory violation or significant
structural defect is stated. While the expert contends that
the platform should have been designed to include a non-
slip border and drainage, he fails to indicate what engin-
eering protocols and methods he used to arrive at the
normative conclusions reached. Not a single Building
Code violation is cited. In failing to state these standards
and methods, the expert appears to rely solely on his
status as a civil engineer. This is insufficient to show
negligence in the design or construction (see Bullock v
 Page 48

Anthony Equities, Ltd., 12 AD3d 326, 786 NYS2d 144 Concur--Buckley, P.J., Mazzarelli, Friedman, Marlow
[2004]). Thus, there has been no showing that West and Sullivan, JJ.
Street created a dangerous condition on the loading dock.

15 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

William Nelson, Respondent, v Chelsea GCA Realty, Inc., et al., Respondents, and
Guess?, Inc., Appellant. (And a Third-Party Action.) (Index No. 7111/00)

2003-08871

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

18 A.D.3d 838; 796 N.Y.S.2d 646; 2005 N.Y. App. Div. LEXIS 5812

February 18, 2005, Argued

May 31, 2005, Decided

CASE SUMMARY: theory other than § 240(1) liability in a third-party ac-

PROCEDURAL POSTURE: Defendant tenant ap-
pealed an order from the Supreme Court in Rockland
County (New York), which denied its cross-motion for
summary judgment dismissal of cross claims by defend-
ants, a shopping center owner and a general contractor,
for contribution and common-law indemnification from
an action by plaintiff worker for personal injuries based
on alleged violations of N.Y. Lab Law §§ 240(1), 241(6).
tion. Since the supreme court properly concluded that a
question existed on whether the tenant employee's negli-
gence caused or contributed to the accident, dismissal of
the cross claims was not warranted on the ground that the
tenant was not subject to § 240(1) liability.
OUTCOME: The court modified the order by convert-
ing the owner's and the contractor's cross claims into
third-party claims against the tenant, and, as modified,
the court affirmed the order.

OVERVIEW: The worker claimed personal injuries
from a fall when a ladder slipped while he was painting a
building that was under construction at the owner's shop-
ping center and was to be leased to the tenant. In re-
sponse to his action under N.Y. Lab. Law §§ 240(1),
241(6), the owner and the contractor asserted contribu-
tion and indemnification cross claims against the tenant.
The worker dropped the statutory claims against the ten-
ant and received partial summary judgment on § 240(1)
strict liability against the owner and the contractor. The
supreme court denied the tenant summary judgment dis-
missal of the cross claims, finding that a question re-
mained on the role a tenant employee's negligence had in
the accident. The tenant appealed. The court found that
dismissal of the direct action against the tenant did not
prevent indemnification and contribution claims under a
CORE TERMS: indemnification, summary judgment,
common-law, prospective tenant, cross claims, claims as-
serted, general contractor, ladder, issue of fact, contract-
or, painting, withdrew, slipped, leased, different theory,
subject to liability, negligence theory, action to recover,
contributed, predicated, converted, pursuing, shopping,
partial, modified
LexisNexis(R) Headnotes
Torts > Procedure > Multiple Defendants > Contribu-
tion > General Overview
[HN1] The critical requirement of a valid third-party
claim for contribution is that the breach of duty by the

contributing party must have had a part in causing or
augmenting the injury for which contribution is sought.
Thus, contribution is available whether or not the culp-
able parties are allegedly liable for the injury under the
same or different theories.
Torts > Procedure > Multiple Defendants > Contribu-
tion > General Overview
Torts > Procedure > Multiple Defendants > Indemnity
> Noncontractual Indemnity
[HN2] The key element of a common-law cause of ac-
tion for indemnification is a duty owed from the indemit-
nor to the indemenitee arising from the principle that
every one is responsible for the consequences of his own
negligence, and if another person has been compelled to
pay the damages which ought to have been paid by the
wrongdoer, they may be recovered from him.
HEADNOTES [***1]
Actions--Third-Party Action.--In action to recover
for injuries sustained by plaintiff when ladder slipped
while he was painting building which was to be leased to
prospective tenant, cross claims asserted by defendants
owner and general contractor for indemnification and
contribution were deemed converted to third-party
claims after plaintiff withdrew his complaint against pro-
spective tenant.
Indemnity--When Claim for Indemnification Avail-
able.--In action to recover for injuries sustained by
plaintiff when ladder slipped while he was painting
building which was to be leased to prospective tenant,
fact that defendants owner and general contractor were
determined to be liable to plaintiff upon theory that they
violated Labor Law § 240 (1) did not necessarily pre-
clude them from pursuing their claims for contribution
and common-law indemnification against prospective
tenant on different theory; since subject claims were pre-
dicated upon negligence theory rather than violation of
Labor Law, dismissal was not warranted upon ground
that prospective tenant was not statutory agent subject to
liability under Labor Law § 240 (1); furthermore, there
was issue of fact as to whether alleged negligence of
prospective tenant's employee caused or contributed to
accident.
COUNSEL: Rende, Ryan & Downes, LLP, White
Plains, N.Y. (Roland T. Koke of counsel), for appellant.
Maloof, Lebowitz, Connahan & Oleske, New York, N.Y.
(Jerald F. Oleske of counsel), for defendants-respondents
and for third-party plaintiff and third-party defendant
(one brief filed).
Page 49
JUDGES: ROBERT W. SCHMIDT, J.P., GABRIEL M.
KRAUSMAN, REINALDO E. RIVERA, STEVEN W.
FISHER, JJ. SCHMIDT, J.P., KRAUSMAN, RIVERA
and FISHER, JJ., concur.
OPINION
[*839] [**647]
In an action to recover damages for personal injur-
ies, the defendant Guess?, Inc., appeals, as limited by its
brief, from so much of an order of the Supreme Court,
Rockland County (Nelson, J.), dated September 7, 2003,
as denied those branches of its cross motion which were
for summary judgment dismissing the cross claims of the
defendants Chelsea GCA Realty, Inc., and Holt Con-
struction Corp. for contribution and common-law indem-
nification insofar as asserted against it.
Ordered that the order is modified, on the law, by
adding a provision thereto converting the cross claims
asserted against the appellant by the defendants Chelsea
[***2] GCA Realty, Inc., and Holt Construction Corp.,
into third-party claims against the appellant; as so modi-
fied, the order is affirmed insofar as appealed from, with
costs to the defendants-respondents.
On December 8, 1997, the plaintiff allegedly was in-
jured when the ladder he was working on slipped, caus-
ing him to fall about 12 feet to the ground. At the time of
the accident, the plaintiff was painting the exterior of a
building under construction [**648] at an outlet shop-
ping center, which was to be leased to Guess?, Inc. (here-
inafter Guess). The plaintiff subsequently commenced
this action against the shopping center's owner, Chelsea
GCA Realty, Inc. (hereinafter Chelsea), the construction
project's general contractor, Holt Construction Corp.
(hereinafter Holt), and the prospective tenant, Guess, al-
leging violations of Labor Law §§ 240 (1) and 241 (6).
Both Chelsea and Holt asserted cross claims against
Guess, inter alia, for contribution and common-law in-
demnification.
After discovery was conducted, the plaintiff moved
for partial summary judgment against Chelsea and Holt
on his Labor Law § 240 (1) claim, alleging that they
[***3] violated this statute by failing to provide him
with an adequately-secured and properly-placed ladder.
Guess cross-moved for summary judgment dismissing
the complaint and cross claims insofar as asserted against
it, contending that it could not be held liable for the
plaintiff's injuries under Labor Law §§ 240 (1) and
241(6) because these provisions impose liability only
upon owners, contractors, and their statutory agents. In
response to the cross motion, the plaintiff withdrew his
complaint insofar as asserted against Guess, conceding
that Guess could not be held liable under Labor Law §§
240 (1) and 241 (6) because there was no evidence that it

was a statutory agent of the owner or contractor. The Su-
preme Court granted the plaintiff's motion for partial
summary judgment on his Labor Law § 240(1) claim,
finding that Chelsea and Holt were strictly liable for his
injuries in their capacity as owner and general contractor,
respectively. [*840] With respect to the cross motion,
the court noted that since the plaintiff withdrew his
claims against Guess, that branch of Guess's cross mo-
tion [***4] which was for summary judgment dismiss-
ing the complaint insofar as asserted against it was aca-
demic. However, the court denied those branches of
Guess's cross motion which were for summary judgment
dismissing the cross claims asserted against it by Chelsea
and Holt, concluding, in essence, that the plaintiff's de-
position testimony raised an issue of fact as to what role
the negligence of a Guess employee may have played in
the accident. Guess appeals from so much of the order as
denied those branches of its cross motion which were for
summary judgment dismissing the contribution and com-
mon-law indemnification cross claims insofar as asserted
against it by Chelsea and Holt.
Although there is no longer a direct action pending
against Guess, claims for indemnification and contribu-
tion may be maintained in a third-party action (see Ar-
curi v Ramos, 7 AD3d 741, 776 NYS2d 895 [2004];
Jones v New York City Hous. Auth., 293 AD2d 371, 742
NYS2d 5 [2002]; Wayburn v Madison Land Ltd. Partner-
ship, 282 AD2d 301, 724 NYS2d 34 [2001]). Accord-
ingly, the cross claims asserted by Chelsea and Holt are
deemed converted to third-party claims.
Guess contends that it cannot be held liable for the
plaintiff's injuries [***5] under Labor Law § 240 (1) be-
cause it was not a statutory agent of an owner or con-
tractor, and that Chelsea and Holt therefore do not have
valid claims for contribution and common-law indemni-
fication against it. We disagree. [HN1] The "critical re-
quirement" of a valid third-party claim for contribution is
that "the breach of duty by the contributing party must
16 of 55 DOCUMENTS
Analysis
As of: Sep 10, 2008
John Driscoll, Appellant, v. Tower Associates et al., Respondents.
5437
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-
Page 50
have had a part in causing or augmenting the injury for
which contribution is sought" (Nassau Roofing & Sheet
Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603,
523 NE2d 803, 528 NYS2d 516 [1988]; see Raquet v
Braun, 90 NY2d 177, 681 NE2d 404, 659 NYS2d 237
[1997]; Rosner v Paley, 65 NY2d 736, 481 NE2d 553,
492 NYS2d 13 [1985]). Thus, "contribution is available
`whether or not the [**649] culpable parties are al-
legedly liable for the injury under the same or different
theories' " (Raquet v Braun, supra at 183, quoting Nas-
sau Roofing & Sheet Metal Co. v Facilities Dev. Corp.,
supra at 603). "Similarly, [HN2] the key element of a
common-law cause of action for indemnification" is a
duty owed from the indemnitor to the indemnitee arising
from "the principle that `every one is responsible for the
consequences of his own negligence, and if another per-
son [***6] has been compelled . . .to pay the damages
which ought to have been paid by the wrongdoer, they
may be recovered from him' " (Raquet v Braun, supra at
183, quoting Oceanic Steam Nav. Co. [Ltd.] v Compania
Transatlantica Espanola, 134 NY 461, 468, 31 NE 987,
29 Abb N Cas 238 [1892]). Accordingly, the fact that
[*841] Chelsea and Holt have been determined to be li-
able to the plaintiff upon the theory that they violated
Labor Law § 240 (1) does not necessarily preclude them
from pursuing their claims for contribution and common-
law indemnification on a different theory (see Raquet v
Braun, supra). Since the subject claims are predicated
upon a negligence theory rather than a violation of the
Labor Law, dismissal was not warranted upon the ground
that Guess was not a statutory agent subject to liability
under Labor Law § 240 (1). Furthermore, the Supreme
Court properly concluded that an issue of fact exists as to
whether the alleged negligence of a Guess employee
caused or contributed to the accident (see Belcastro v
Hewlett-Woodmere Union Free School Dist. No. 14, 286
AD2d 744, 730 NYS2d 535 [2001]; Reilly v DiGiacomo
& Son, 261 AD2d 318, 690 NYS2d 424 [1999]). [***7]
Schmidt, J.P., Krausman, Rivera and Fisher, JJ., concur.

MENT
16 A.D.3d 311; 793 N.Y.S.2d 11; 2005 N.Y. App. Div. LEXIS 3234
March 29, 2005, Decided
March 29, 2005, Entered
PRIOR HISTORY: [***1]
Driscoll v. Tower Assocs., 2004 N.Y. App. Div. LEXIS
13385 (N.Y. App. Div. 1st Dep't, Nov. 9, 2004)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff fireman appealed
the order of the Supreme Court, New York County (New
York), granting summary judgment in favor of defend-
ants, tenant and others, in the fireman's cause of action
pursuant to N.Y. Gen. Mun. Law § 205-a and his cause of
action alleging common law personal injury claims.
OVERVIEW: Based on a fire department report stating
that the fire originated in a closet in the tenant's apart-
ment where oily rags were being stored, the fireman as-
serted a N.Y. Gen. Mun. Law § 205-a claim alleging viol-
ation of former N.Y. Comp. Codes R. & Regs. tit. 9, §§
1191.1a, 1191.1e. The trial court erred when it held that
because these sections were a general codification of
common law negligence, they could not serve as a pre-
dicate for a N.Y. Gen. Mun. Law § 205-a claim. It was
not necessary for the fireman to show that the violation
that allegedly caused the fire exposed him to additional
hazards immediately causing his injury or that there was
some formal notice of hazard. The tenant's statements
that he did not know about the oily rags were insufficient
to warrant summary judgment in his favor. As to the
common law claims, in response to the prima facie
showing by the tenant and others that the code viola-
tions alleged by the fireman, even if proven, were neither
a direct nor indirect cause of the accident, the fireman
failed to raise a triable issue of fact that there was a prac-
tical or reasonable connection between the alleged code
violations and the claimed injuries.
OUTCOME: The order was modified insofar as the stat-
utory claim was reinstated. The order was otherwise af-
firmed.
CORE TERMS: common-law, hazard, firefighter, ten-
ant, oily, rags, code violations, summary judgment,
apartment, smoke, hose, violation of former, formal no-
tice, initial burden, smoke alarm, demonstrating, invest-
igated, proximately, predicated, precautions, notifying,
operable, indirect, exposed, storage, closet
Page 51
HEADNOTES
Negligence--Injuries to Firefighters.--Plaintiff fire-
fighter stated valid claim under General Municipal Law
§ 205-a against tenant predicated on storing oily rags in
closet in violation of former Fire Prevention and Build-
ing Code (9 NYCRR) §1191.1 (a) (general precautions),
and it was not necessary for plaintiff to show that viola-
tion exposed him to additional hazards immediately
causing his injury, or that there was some formal notice
of hazard--tenant's statements that he did not know
about storage of oily rags were insufficient to warrant
summary judgment in his favor.
Negligence--Injuries to Firefighters.--Defendants
sustained their initial burden of proof for dismissal of
common-law claims by demonstrating that code viola-
tions alleged by plaintiff firefighter, relating to absence
of operable smoke alarm in defendant tenants apartment,
and 15-minute delay in notifying Fire Department while
it investigated source of smoke, were neither direct nor
indirect cause of plaintiff's accident--plaintiff's failure to
demonstrate that alleged violations proximately caused
accident meant that defendants could not be liable for
common-law negligence (see General Obligations Law
§ 11-106).
COUNSEL: Barasch McGarry Salzman Penson & Lim,
New York (Dominique Penson of counsel), for appellant.
Greater New York Mutual Insurance Company, New
York (Richard C. Rubinstein of counsel), for Tower As-
sociates, Regency Affiliates, Carlyle Construction Cor-
poration and Regency Joint Venture, respondents.
Marshall, Conway & Wright, P.C., New York (Steven L.
Sonkin of counsel), for Thomas DeMaio, respondent.
JUDGES: Concur--Tom, J.P., Mazzarelli, Andrias,
Friedman, Gonzalez, JJ.
OPINION
[*312] [**12] Order, Supreme Court, New York
County (Marylin G. Diamond, J.), entered October 7,
2002, which granted defendants' motions for summary
 Page 52

judgment dismissing the complaint, unanimously modi- did sustain their initial burden of proof by demonstrating
fied, on the law, the claim under General Municipal Law that the code violations alleged by plaintiff--relating to
§ 205-a reinstated against defendant DeMaio, and other- the absence of an operable smoke alarm in DeMaio's
wise affirmed, without costs. apartment, and the 15-minute delay by the building staff
in notifying the [***3] Fire Department while it invest-
Based on a Fire Department report stating that the
igated the source of the smoke reported by an unidenti-
fire originated near the stove in DeMaio's apartment, in a
fied tenant--even if proven, were neither a direct nor in-
closet where oily rags were being stored, plaintiff fire-
direct cause of plaintiff's accident. Plaintiff testified at
man asserted a section 205-a claim against DeMaio pre-
deposition [*313] that he had been "whacked" by the
dicated, inter alia, on practices in [***2] violation of
fire hose he had connected to the standpipe as a result of
former Fire Prevention and Building Code (9 NYCRR) §
somebody turning on the water or pulling the hose line.
1191.1 (a) (general precautions) and (e) (maintaining a
Alternatively, he was not sure what had caused the hose
hazard). The court erred when it held that because these
to hit him, but at no point did he link the cause of this ac-
sections are a general codification of common-law negli-
cident to the smoke condition he allegedly encountered
gence, they may not serve as a predicate for a section
in the stairwell. In opposition to defendants' prima facie
205-a claim (see Giuffrida v Citibank Corp., 100 NY2d
demonstration of entitlement to judgment as a matter of
72, 790 NE2d 772, 760 NYS2d 397 [2003]). It is not ne-
law, plaintiff failed to raise a triable issue of fact that
cessary for plaintiff to show that the violation allegedly
there was a practical or reasonable connection between
causing the fire exposed him to additional hazards imme-
these alleged code violations and the claimed injuries
diately causing his injury (see Clow v Fisher, 228 AD2d
(cf. Giuffrida v Citibank Corp., supra). Furthermore,
11, 652 NYS2d 870 [1997]), or that there was some form-
plaintiff's failure to demonstrate that the alleged viola-
al notice of a hazard (see Lusenskas v Axelrod, 183
tions proximately caused the accident meant that defend-
AD2d 244, 248, 592 NYS2d 685 [1992], appeal dis-
ants could not be liable for common-law negligence (see
missed 81 NY2d 300, 614 NE2d 729, 598 NYS2d 166
General Obligations Law § 11-106; [***4] Signorile v
[1993]). DeMaio's statements that he did not know about
Roy, 308 AD2d 573, 764 NYS2d 870 [2003], lv denied 1
the storage of oily rags are insufficient to warrant sum-
NY3d 504, 807 NE2d 894, 775 NYS2d 781 [2003]). Con-
mary judgment in his favor.
cur--Tom, J.P., Mazzarelli, Andrias, Friedman and
As to the common-law claims, however, defendants Gonzalez, JJ.

17 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Christopher Hosler, Appellant, v Northern Eagle Beverages, Inc., Defendant, and

Barbara L. Albert, Respondent.

CA 04-02161

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DE-

PARTMENT

15 A.D.3d 925; 790 N.Y.S.2d 341; 2005 N.Y. App. Div. LEXIS 1085

February 4, 2005, Decided

February 4, 2005, Entered

DISPOSITION: [***1] Affirmed. CASE SUMMARY:


PROCEDURAL POSTURE: Plaintiff sought review of
an order of the Supreme Court, Onondaga County (New
York), which granted defendant's motion for summary
judgment in an action asserting causes of action for com-
mon-law negligence and the violation of N.Y. Lab. Law
§§ 200, 240(1), and 241(6).
OVERVIEW: Plaintiff filed an action against defendant
after he fell while installing a satellite television dish on
the garage roof at defendant's residence. Defendant and
her brother resided in the house. The satellite dish was
for the use of defendant's tenant, who resided in an apart-
ment over the garage. The trial court granted defendant's
motion for summary judgment. On appeal, the court
found that defendant's house constituted a single-family
dwelling, and the apartment over the garage rendered the
house a two-family dwelling. At the time of the accident,
plaintiff was engaged in an activity that directly related
to the residential use of the home. Even if the work also
served a commercial purpose, defendant nevertheless
was shielded by the homeowner exemption from the ab-
solute liability of N.Y. Lab. Law §§ 240 and 241. The tri-
al court properly granted that part of defendant's motion
with respect to the common-law negligence cause of ac-
tion and the N.Y. Lab. Law § 200 claim. It was undis-
puted that defendant neither supervised nor controlled
plaintiff's work, and defendant established as a matter of
law that plaintiff's injuries were not caused by a danger-
ous condition on her premises.
OUTCOME: The court affirmed the order of the trial
court.
CORE TERMS: garage, television, causes of action,
satellite, apartment, dwelling, roof, dish, single-family,
common-law, matter of law, commercial purpose, abso-
lute liability, dangerous condition, summary judgment,
properly granted, residential, installing, supervised,
homeowner, exemption, stepping, shielded, ladder, snow,
ice
HEADNOTES
Labor--Safe Place to Work.--Labor Law § 240 (1)
and § 241 (6) causes of action were dismissed in action
to recover for injuries sustained by plaintiff when he fell
to ground while stepping from ladder onto roof of de-
fendant's garage while installing satellite television dish
on roof of garage of defendant's residence--defendant's
house constituted single-family dwelling, and apartment
over attached garage rendered house two-family dwell-
ing--plaintiff was engaged in activity that directly related
to residential use of home; even if work also served com-
Page 53
mercial purpose, defendant was shielded by homeowner
exemption from absolute liability of Labor Law §§ 240
and 241--common-law negligence cause of action and
Labor Law § 200 claim were also dismissed; defendant
neither supervised nor controlled plaintiff's work, and de-
fendant established as matter of law that plaintiff's injur-
ies were not caused by dangerous condition on her
premises, i.e., snow and ice.
COUNSEL: STANLEY LAW OFFICES, SYRACUSE,
(ROBERT QUATTROCCI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
MITCHELL GORIS STOKES & KNYCH, LLC,
CAZENOVIA, (MARK D. GORIS OF COUNSEL),
FOR DEFENDANT-RESPONDENT.
JUDGES: Present--Green, J.P., Scudder, Martoche,
Smith and Lawton, JJ.
OPINION
[*926] [**342] Appeal from an order of the Su-
preme Court, Onondaga County (Thomas J. Murphy, J.),
entered December 2, 2003. The order granted the motion
of defendant Barbara L. Albert for summary judgment
dismissing the complaint against her.
It is hereby ordered that the order so appealed from
be and the same hereby is unanimously affirmed without
costs.
Memorandum: Supreme Court properly granted the
motion of Barbara L. Albert (defendant) seeking sum-
mary judgment dismissing the complaint against her.
Plaintiff commenced this action asserting causes of ac-
tion for common-law negligence and the violation of
Labor Law §§ 200, 240 (1) and § 241 (6) arising from in-
juries he sustained when he fell to the ground while
stepping from a ladder onto the roof of defendant's gar-
age. Plaintiff fell while installing [***2] a satellite tele-
vision dish on the roof of the garage of defendant's resid-
ence. Defendant and her brother resided in the house, and
the satellite television dish was for the use of defendant's
tenant, who resided in an apartment over the attached
garage. Although defendant's brother paid rent to defend-
ant, the house was "structurally a single-family resid-
ence," and defendant's brother did not have "separate liv-
ing quarters" (Rivera v Revzin, 163 AD2d 896, 897, 559
NYS2d 74 [1990], lv denied 79 NY2d 760, 594 NE2d
942, 584 NYS2d 448 [1992]). Thus, contrary to plaintiff's
contention, defendant's house constitutes a single-family
dwelling, and the apartment over the attached garage
renders the house a two-family dwelling (see generally
Sheehan v Gong, 2 AD3d 166, 168-169, 769 NYS2d 507
[2003]). The televisions in both the house and the apart-
 Page 54

ment utilized one satellite television dish prior to the in-
stallation of the second one, and we therefore further
conclude that plaintiff was engaged in an activity that
"directly relates to the residential use of the home" (Bar-
too v Buell, 87 NY2d 362, 368, 662 NE2d 1068, 639
NYS2d 778 [1996]). Thus, "even if the work also serves
a commercial purpose, [defendant nevertheless] is shiel-
ded [***3] by the homeowner exemption from the abso-
lute liability of Labor Law §§ 240 and 241" (id.).
Furthermore, the court properly granted that part of
defendant's motion with respect to the common-law neg-
ligence cause [*927] of action and the Labor Law § 200
[**343] claim. It is undisputed that defendant neither su-
pervised nor controlled plaintiff's work, and defendant
established as a matter of law that plaintiff's injuries were
not caused by a dangerous condition on her premises,
i.e., snow and ice (see Sheehan, 2 AD3d at 170; Millson
v Arnot Realty Corp., 266 AD2d 918, 919, 697 NYS2d
435 [1999]; see also Bilinski v Bank of Richmondville,
12 AD3d 911, 784 NYS2d 708 [2004]). Present--Green,
J.P., Scudder, Martoche, Smith and Lawton, JJ.

18 of 55 DOCUMENTS

Analysis
As of: Sep 10, 2008

Ernest B. Turner, Appellant, v. Richard Canale et al., Respondents.

CA 04-01326

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DE-

PARTMENT

15 A.D.3d 960; 790 N.Y.S.2d 347; 2005 N.Y. App. Div. LEXIS 1097

February 4, 2005, Decided

February 4, 2005, Entered

SUBSEQUENT HISTORY: [***1]
Appeal denied by Turner v. Canale, 5 NY3d 702, 832
NE2d 1189, 2005 N.Y. LEXIS 1220, 799 NYS2d 773
(N.Y., June 9, 2005)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant injured tenant
sought review of the judgment of the Supreme Court,
Oswego County (New York), which denied the tenant's
motion for partial summary judgment on the issue of li-
ability under N.Y. Lab. Law § 240(1) and granted ap-
pellee premises owners' cross motion for summary judg-
ment in regard to a personal injury action.
OVERVIEW: The parties executed a lease for the rental
of premises owned by the premises owners to be used by
the tenant as a retail bicycle shop. According to the
terms of the lease, rent in the amount of $ 800 was
waived for the first month of the lease as the premises
owners' contribution to renovations required for the ten-
ant's use. The tenant expended over $ 20,000 in renova-
tion work in order to transform the building into a retail
bicycle shop and was injured during those renovations
when a stepladder fell out from under him. He com-
menced the action asserting causes of action for com-
mon-law negligence and violations of N.Y. Lab. Law §§
240(1), 241(6), and 200. The appellate court concluded
that the trial court properly granted that part of the cross
motion seeking summary judgment dismissing the sec-
tion 240(1) cause of action. Contrary to the contention of
the tenant, the terms of the lease did not establish that he
was "hired" by the premises owners to renovate the prop-
erty and thus the terms of the lease did not establish that
the tenant was employed by the premises owners within
the meaning of the Labor Law.
OUTCOME: The judgment of the trial court was af-
firmed.
 Page 55

defendants to be used by plaintiff as a retail bicycle shop.

CORE TERMS: cause of action, lease, summary judg-
ment, renovation, partial, terms of lease, stepladder, ren-
ovate, bicycle, waived, retail, hired, rent, shop
HEADNOTES
Labor--Safe Place to Work.--Labor Law § 240 (1)
cause of action was dismissed in action by plaintiff ten-
ant, who was injured during renovations of leased
premises when stepladder fell out from under him--lease
provided that rent was waived for first month of lease as
defendant's "contribution to renovations required for
[plaintiff's] use"--terms of lease did not establish that
plaintiff was "hired" by defendants to renovate property
and thus terms of lease did not establish that plaintiff was
employed by defendants within meaning of Labor Law.
COUNSEL: SUGARMAN LAW FIRM, LLP, SYRA-
CUSE (SANDRA L. HOLIHAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
COHEN & LOMBARDO, P.C., BUFFALO (CHRIS-
TOPHER M. DUGGAN OF COUNSEL), FOR DE-
FENDANTS-RESPONDENTS.
JUDGES: PRESENT--PIGOTT, JR., P.J., PINE, KE-
HOE, GORSKI, AND MARTOCHE, JJ.
OPINION
[*960] [**348] Appeal from an order of the Su-
preme Court, Oswego County (Robert J. Nicholson, J.),
entered December 5, 2003. The order denied plaintiff's
motion for partial summary judgment on the issue of li-
ability under Labor Law § 240 (1) and granted defend-
ants' cross motion for summary judgment dismissing the
amended complaint in a personal injury action.
It is hereby ordered that the order so appealed from
be and the same hereby is unanimously affirmed without
costs.
Memorandum: Plaintiff and Richard Canale (defend-
ant) executed a lease for the rental of premises owned by
According to the terms of the lease, rent in the amount of
$ 800 was waived for the first month of the lease as de-
fendant's "contribution to renovations required [***2]
for [plaintiff's] use." Plaintiff expended over $ 20,000 in
renovation work in order to transform the building into a
retail bicycle shop and was injured during those renova-
tions when a stepladder fell out from under him. He com-
menced this action asserting causes of action for com-
mon-law negligence and violations of Labor Law § 240
(1), § 241 (6) and § 200. Plaintiff moved for partial sum-
mary judgment on liability on the section 240 (1) cause
of action, and defendants cross-moved for summary
judgment dismissing the amended complaint. Supreme
Court denied plaintiff's motion and granted defendants'
cross motion. In his brief on appeal, plaintiff contends
only that the court erred in dismissing the section 240 (1)
cause of action and in denying his motion for partial
summary judgment on that cause of action and thus has
abandoned his appeal with respect to the court's dis-
missal of the other causes of action (see Russo v Clinton
Disposal Serv., 295 AD2d 1006, 1007, [*961] 743
NYS2d 369 [2002]; Ciesinski v Town of Aurora, 202
AD2d 984, 609 NYS2d 745 [1994]). We note in addition
that the contentions raised for the first time in plaintiff's
reply brief are not properly before this Court (see Greene
v Xerox Corp., 244 AD2d 877, 878, 665 NYS2d 137
[1997], [***3] lv denied 91 NY2d 809, 693 NE2d 750,
670 NYS2d 403 [1998]; O'Sullivan v O'Sullivan, 206
AD2d 960, 960-961, 614 NYS2d 828 [1994]).
With respect to the merits, we conclude that the
court properly granted that part of defendants' cross mo-
tion seeking summary judgment dismissing the Labor
Law § 240 (1) cause of action. Contrary to the contention
of plaintiff, the terms of the lease do not establish that he
was "hired" by defendants to renovate the property and
thus the terms of the lease do not establish that plaintiff
was employed by defendants within the meaning of the
Labor Law (Whelen v Warwick Val. Civic & Social Club,
47 NY2d 970, 971, 393 NE2d 1032, 419 [**349] NYS2d
959 [1979]; see Labor Law § 2 [5]; Schiavone v Halicki,
221 AD2d 950, 951, 634 NYS2d 312 [1995]). Present--
Pigott, Jr., P.J., Pine, Kehoe, Gorski and Martoche, JJ.

19 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008
 Page 56

Linda Knipfing et al., Appellants, v. V&J, Inc., et al., Respondents. Index No.
23440/00

2003-09500

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

8 A.D.3d 628; 779 N.Y.S.2d 244; 2004 N.Y. App. Div. LEXIS 9133

June 10, 2004, Submitted

June 28, 2004, Decided

CASE SUMMARY:
Torts > Premises Liability & Property > Lessees &
Lessors > General Overview
PROCEDURAL POSTURE: In an action to recover Torts > Products Liability > Design Defects
damages for personal injuries, plaintiffs, a wife and her [HN1] An out-of-possession landlord is not liable for in-
husband, challenged an order from the Supreme Court in juries occurring on the premises unless it has retained
Suffolk County (New York), which granted defendant control of the premises or is contractually obligated to
landowners' motion for summary judgment dismissing perform maintenance and repairs. Reservation of a right
the complaint and denied, as academic, their cross mo- of entry for inspection and repair may constitute suffi-
tion to direct the landowners to implead a third party. cient retention of control to impose liability for injuries
caused by a dangerous condition, but only where the
OVERVIEW: The wife allegedly sustained injuries condition violates a specific statutory provision and there
when she fell while dancing at premises owned by the is a significant structural or design defect.
landowner and leased to a restaurant company, which op-
erated it as a night club. She and her husband com- HEADNOTES
menced a personal injury action, alleging the fall was
[***1] Negligence--Maintenance of Premises.--
caused by a sticky substance on the dance floor. The
Complaint dismissed in action to recover for injuries
landowner was dismissed from the action on summary
sustained by plaintiff when she fell while dancing on
judgment, prompting the wife and the husband to appeal.
sticky substance on dance floor at premises owned by de-
The court found the landowner could only be liable if it
fendant--defendant did not retain control over premises;
retained controlled over the premises, which it did not
under terms of lease, tenant was responsible for main-
have. The restaurant company was responsible for main-
tenance and repairs; while defendant had right to enter
tenance and repairs. While the owner had the right to
for purposes of inspection and repair, plaintiffs submitted
enter for purposes of inspection and repair, the husband
no evidence of any statutory violation or structural or
and the wife submitted no evidence of any statutory viol-
design defect.
ation or structural or design defect. The husband and the
wife failed to raise a triable issue of fact in opposition to
COUNSEL: Zimmer, Mazzei and Blair, Hauppauge,
the landowner's prima facie showing of its entitlement to
N.Y. (Patricia Byrne Blair of counsel), for appellants.
summary judgment. Dismissal of the landowners from
the suit was proper.
Clausen Miller, P.C., New York, N.Y. (Kimberly A. Kear-
ney, Steven J. Fried, and Melissa A. Murphy-Petros of
OUTCOME: The court affirmed the order granting the
counsel), for respondents.
landowners' motion for summary judgment.
JUDGES: MYRIAM J. ALTMAN, J.P., HOWARD
CORE TERMS: repair, design defect, summary judg-
MILLER, SANDRA L. TOWNES, STEVEN W. FISH-
ment, inspection, right to enter, statutory violation, im-
ER, JJ. ALTMAN, J.P., H. MILLER, TOWNES and
plead, lease, action to recover, dance floor, dancing,
FISHER, JJ., concur.
sticky
OPINION
LexisNexis(R) Headnotes
[*628] [**245] In an action to recover damages
for personal injuries, etc., the plaintiffs appeal from an
 Page 57

order of the Supreme Court, Suffolk County (Werner, J.),
dated September 4, 2003, which granted the defendants'
motion for summary judgment dismissing the complaint
and denied as academic their cross motion to direct the
defendants to implead a third party.
Ordered that the order is affirmed, with costs.
The plaintiff Linda Knipfing allegedly sustained in-
juries when she fell while dancing at premises owned by
V&J, Inc., and leased to M.J.M. Restaurant Corp. (here-
inafter M.J.M.). She and her husband subsequently com-
menced this action against V&J, Inc., and V&J, Inc., do-
ing business as Landmark II Cafe (hereinafter [***2]
collectively V&J), alleging that her fall was caused by a
sticky substance on the dance floor.
[HN1] An out-of-possession landlord is not liable
for injuries occurring [*629] on the premises unless it
has retained control of the premises or is contractually
obligated to perform maintenance and repairs (see Ingar-
giola v Waheguru Mgt., 5 A.D.3d 732, 774 N.Y.S.2d 557
[2004]; Thompson v Port Auth. of N.Y. & N.J., 305
A.D.2d 581, 761 N.Y.S.2d 75 [2003]; Eckers v Suede,
294 A.D.2d 533, 743 N.Y.S.2d 129 [2002]). Reservation
of a right of entry for inspection and repair may consti-
tute sufficient retention of control to impose liability for
injuries caused by a dangerous condition, but only where
the condition violates a specific statutory provision and
there is a significant structural or design defect (see In-
gargiola v Waheguru Mgt., supra; Nunez v Alfred Bleyer
& Co., 304 A.D.2d 734, 757 N.Y.S.2d 798 [2003]; Eckers
v Suede, supra).
[**246] Here, V&J did not retain control over the
premises. Under the terms of the lease, M.J.M. was re-
sponsible for maintenance and repairs. While V&J had
the right to enter for purposes of inspection and repair,
the plaintiffs submitted no evidence of any statutory viol-
ation or [***3] structural or design defect. The plaintiffs
failed to raise a triable issue of fact in opposition to
V&J's prima facie showing of its entitlement to summary
judgment. Consequently, the Supreme Court properly
granted V&J's motion for summary judgment dismissing
the complaint and denied as academic the plaintiffs' cross
motion to direct V&J to implead M.J.M. (see Ingargiola
v Waheguru Mgt., supra; Thompson v Port Auth. of N.Y.
& N.J., supra; Nunez v Alfred Bleyer & Co., supra).
The plaintiffs' contention that V&J should be es-
topped from denying liability is without merit.
In light of the foregoing, it is unnecessary to address
the parties' remaining contentions.
Altman, J.P., H. Miller, Townes and Fisher, JJ., con-
cur.

20 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Edward Murphy et al., Respondents, v. WFP 245 Park Co., L.P., Respondent, and
The Bear Stearns Companies, Inc., Appellant, et al., Defendant. Bear Stearns & Co.,
Inc., Third-Party Plaintiff-Appellant, v Fraser Gold Carpet Corp., Third-Party De-
fendant-Respondent. (And Another Action.)

3960

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

8 A.D.3d 161; 779 N.Y.S.2d 69; 2004 N.Y. App. Div. LEXIS 8664

June 22, 2004, Decided

June 22, 2004, Entered

CASE SUMMARY:

PROCEDURAL POSTURE: The Supreme Court,
Bronx County (New York), granted respondent landlord's
summary judgment motion against appellant tenant for
contribution and indemnification, denied the tenant's mo-
tion for summary judgment dismissing the complaint,
denied the tenant's summary judgment motion against re-
spondent carpeting subcontractor, and granted the carpet-
ing subcontractor's summary judgment motion dismiss-
ing the third-party complaint. The tenant appealed.
OVERVIEW: On appeal, the court found that the car-
peting subcontractor had no authority to supervise or
control the demolition work that actually gave rise to the
claimant's injuries, and thus any claims against it were
properly dismissed. A factual issue remained, however,
as to the tenant's authority to supervise and control the
ongoing demolition and renovation work. An issue also
existed with regard to the claimant's N.Y. Lab. Law §
241(6) claim of a violation of the New York Industrial
Code (N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(e))
-- specifically, whether the studding over which the
claimant tripped was part of new drywall construction or
whether they were studs that had yet to be demolished.
The landlord was entitled to summary judgment on its
motion for contractual indemnification because there was
no issue of negligence on the part of the landlord.
However, in light of factual issues concerning the extent
to which the tenant was liable, the issue of common-law
indemnification was not yet ripe for adjudication.
OUTCOME: The order was modified to deny the land-
lord's motion with respect to common-law indemnifica-
tion, and, as modified, the order was otherwise affirmed,
without costs.
CORE TERMS: summary judgment, indemnification,
demolition, supervise, factual issue, gave rise, properly
dismissed, subcontractor, renovation, demolished, com-
mon-law, carpeting, studding, landlord, ongoing, tripped,
drywall, tenant, studs
HEADNOTES
[***1] Labor--Safe Place to Work.--Since defend-
ant carpeting subcontractor had no authority to supervise
or control demolition work that gave rise to plaintiff's in-
juries, any claims against it were properly dismissed--
factual issue remained, however, as to defendant tenant's
authority to supervise and control ongoing demolition
and renovation work, precluding summary judgment in
its favor; issue also existed with regard to plaintiff's
Labor Law § 241 (6) claim of violation of Industrial
Code (12 NYCRR 23-1.7 [e]), specifically, whether stud-
Page 58
ding over which plaintiff tripped was part of new drywall
construction or whether they were studs that had yet to
be demolished.
COUNSEL: Eustace & Marquez, White Plains (Heath
A. Bender of counsel), for appellant.
Alexander J. Wulwick, New York, for Murphy respond-
ents.
Cerussi & Spring, White Plains (Jennifer R. Freedman of
counsel), for WFP 245 Park Co., L.P., respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J.
Isaac of counsel), for Fraser Gold Carpet Corp., respond-
ent.
JUDGES: Concur--Nardelli, J.P., Mazzarelli, Andrias,
Gonzalez and Sweeny, JJ.
OPINION
[*161] [**70] Order, Supreme Court, Bronx
County (Barry Salman, J.), entered October 1, 2003,
which granted defendant WFP 245 Park's motion for
summary judgment on its cross claim against defendant
Bear Stearns for contribution and indemnification,
denied Bear Stearns's cross motion for summary judg-
ment dismissing the complaint and all claims against it,
denied Bear Stearns's motion for summary judgment
against third-party defendant [*162] Fraser Gold Carpet,
and granted Fraser Gold's motion for summary judgment
dismissing the third-party complaint, unanimously modi-
fied, on the law, WFP Park's motion with respect to com-
mon-law indemnification denied, and [***2] otherwise
affirmed, without costs.
Fraser Gold, the carpeting subcontractor, had no au-
thority to supervise or control the demolition work that
actually gave rise to plaintiff's injuries, and thus any
claims against it were properly dismissed (see Walsh v
Sweet Assoc., 172 A.D.2d 111, 577 N.Y.S.2d 324 [1991],
lv denied 79 N.Y.2d 755, 590 N.E.2d 251, 581 N.Y.S.2d
666 [1992]). A factual issue remains, however, as to the
tenant Bear Stearns's authority to supervise and control
the ongoing demolition and renovation work. An issue
also [**71] exists with regard to plaintiff's Labor Law §
241 (6) claim of a violation of the Industrial Code (12
NYCRR 23-1.7 [e])--specifically, whether the studding
over which plaintiff tripped was part of new drywall con-
struction or whether they were studs that had yet to be
demolished (see Vieira v Tishman Constr. Corp., 255
A.D.2d 235, 679 N.Y.S.2d 618 [1998]).
The landlord was entitled to summary judgment on
its motion for contractual indemnification since there is
 Page 59

no issue of negligence on the part of the landlord.
However, in light of factual issues concerning the extent
to which Bear Stearns was liable, the issue of common-
law indemnification [***3] is not yet ripe for adjudica-
tion (Correia v Professional Data Mgt., 259 A.D.2d 60,
65, 693 N.Y.S.2d 596 [1999]).
Concur--Nardelli, J.P., Mazzarelli, Andrias, Gonza-
lez and Sweeny, JJ.

21 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

James Ingargiola, Respondent, v. Waheguru Management, Inc., et al., Respondent,

and E. Anthony Mazzella, Jr., Appellant. (Index No. 18090/01)

2003-03343

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

5 A.D.3d 732; 774 N.Y.S.2d 557; 2004 N.Y. App. Div. LEXIS 3617

February 23, 2004, Argued

March 29, 2004, Decided

SUBSEQUENT HISTORY: [***1]
Appeal dismissed by Ingargiola v. Waheguru Mgmt.,
Inc., 3 N.Y.3d 656, 816 N.E.2d 568, 2004 N.Y. LEXIS
1704, 782 N.Y.S.2d 695 (N.Y., June 29, 2004)
CASE SUMMARY:
PROCEDURAL POSTURE: In an action to recover
damages for personal injuries, defendant property owner
appealed from an order of the Supreme Court, Suffolk
County (New York), that denied his motions for sum-
mary judgment dismissing the complaint and all cross
claims insofar as asserted against him and for summary
judgment on his cross claim for contractual indemnifica-
tion against defendant lessee.
the lessee to maintain and repair the premises and to al-
locate the risk of liability to third parties. Accordingly,
the owner was entitled to summary judgment dismissing
the complaint and all cross claims insofar as asserted
against him as he demonstrated his prima facie entitle-
ment to such relief, and the opposition was insufficient to
establish a triable issue of fact warranting a denial of the
motion. Finally, the owner was entitled to summary judg-
ment on his cross claim against the assignee, the lessee,
for contractual indemnification, which included attor-
ney's fees, expenses, costs, and disbursements.
OUTCOME: The order was reversed, the owner's mo-
tions were granted, and the matter dismissed as to the
property owner. It was remitted to the trial court for a de-
termination of costs.

OVERVIEW: The lessee was responsible for the main-
tenance and repair of the premises under the terms of the
lease and had agreed to indemnify and hold the owner
harmless against personal injury claims arising out of its
negligence. In a rider to the lease, the lessee also agreed
to include the owner as an additional insured on its gen-
eral liability coverage policy. The owner relinquished
control over the property, and was not obligated under
the terms of the lease to maintain and repair the
premises. Moreover, the owner was free to contract with
CORE TERMS: cross claims, summary judgment, re-
pair, lease, car wash, indemnification, contractual, per-
sonal injury, assignee, design defect, attorney's fees, dis-
bursements, obligated, landlord, individually, right of
entry, impose liability, liability insurance, expressly as-
sumed, out-of-possession, relinquished, reservation, pro-
curement, retention, allocate, tenant, mutual, action to re-
cover, claims arising, terms of lease
LexisNexis(R) Headnotes

Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Duty to
Repair > General Overview
[HN1] An out-of-possession landlord is not liable for
personal injuries sustained on the premises unless the
landlord retains control of the property or is contractually
obligated to perform maintenance and repairs.
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Power to Reenter & Terminate
Torts > Premises Liability & Property > Lessees &
Lessors > General Overview
Torts > Products Liability > Design Defects
[HN2] Although reservation of a right of entry may con-
stitute sufficient retention of control to impose liability
upon an out-of-possession landlord for injuries caused by
a dangerous condition which constitutes a violation of a
duty imposed by statute, this exception applies only
where a specific statutory violation exists and there is a
significant structural or design defect.
HEADNOTES
Negligence--Maintenance of Premises.--In action to
recover for injuries sustained by plaintiff allegedly due
to defendants' negligence while at premises owned by
defendant owner and leased by nonparty, which assigned
lease to defendant assignee, owner was entitled to sum-
mary judgment dismissing complaint and cross claims
against him--assignee was responsible for maintenance
and repair of premises under terms of lease and had
agreed to indemnify and hold owner harmless against
personal injury claims arising out of its negligence;
owner relinquished control over property, and was not
obligated under terms of lease to maintain and repair
premises--owner's reservation of right of entry did not
constitute sufficient retention of control to impose liabil-
ity since plaintiff did not allege violation of specific stat-
utory safety provision or existence of significant structur-
al or design defect--owner was free to contract with his
tenant to maintain and repair premises and to allocate
risk of liability to third parties by procurement of liability
insurance for their mutual benefit; assignee expressly as-
sumed those obligations upon execution of assignment.
COUNSEL: Thomas M. Bona, P.C., White Plains, N.Y.
(Robert M. Lefland of counsel), for appellant.
Cruser & Mitchell, LLP, Melville, N.Y. (Justin L.
Lowenberger of counsel), for plaintiff-respondent.
Page 60
Kaufman Borgeest & Ryan, LLP, New York, N.Y. (Mi-
chael R. Janes of counsel), for defendants-respondents.
JUDGES: SONDRA MILLER, J.P., DANIEL F. LU-
CIANO, THOMAS A. ADAMS, SANDRA L.
TOWNES, JJ. S. MILLER, J.P., LUCIANO, ADAMS
and TOWNES, JJ., concur.
OPINION
[*732] [**558] In an action to recover damages
for personal injuries, the defendant E. Anthony Mazzella,
Jr., appeals from so much of an order of the Supreme
Court, Suffolk County (Burke, J.), dated March 12, 2003,
as, in effect, denied those branches of his motion which
were for summary judgment dismissing the complaint
and all cross claims insofar as asserted against him and
for summary judgment on his cross claim for contractual
indemnification against the defendant Waheguru Man-
agement, Inc., individually and doing business as Mike's
Full Service Car Wash and Detail Center.
Ordered that the order is reversed insofar as ap-
pealed from, with [***2] one bill of costs payable by the
respondents appearing separately and filing separate
briefs, those branches of the motion which were for sum-
mary judgment dismissing the [**559] complaint and all
cross claims insofar as asserted against the appellant and
for summary judgment on the appellant's cross claim for
contractual indemnification against the defendant Wahe-
guru Management, Inc., individually and doing business
as Mike's Full Service Car Wash and Detail Center are
granted, the [*733] complaint and all cross claims are
dismissed insofar as asserted against the appellant, and
the matter is remitted to the Supreme Court, Suffolk
County, for a determination of the amount of attorney's
fees, expenses, costs, and disbursements to be awarded
on the cross claim for contractual indemnification against
the defendant Waheguru Management, Inc., individually
and doing business as Mike's Full Service Car Wash and
Detail Center.
On March 19, 2000, the plaintiff was injured, al-
legedly due to the defendants' negligence, while at a car
wash located at premises owned by the defendant E. An-
thony Mazzella, Jr. The premises were leased to a non-
party, M & G Car Wash, Inc., which subsequently as-
signed the lease to the defendant Waheguru [***3] Man-
agement, Inc. (hereinafter Waheguru). Waheguru was re-
sponsible for the maintenance and repair of the premises
under the terms of the lease and had agreed to indemnify
and hold Mazzella harmless against personal injury
claims arising out of its negligence. In a rider to the
lease, Waheguru also agreed to include Mazzella as an
additional insured on its general liability coverage policy.
The lease further provided, inter alia, that Mazzella re-
 Page 61

tained the right to enter the premises during normal busi-
ness hours. Mazzella moved, inter alia, for summary
judgment dismissing the complaint and all cross claims
insofar as asserted against him and for summary judg-
ment on his cross claim against Waheguru for contractual
indemnification. The Supreme Court denied the motion.
[HN1] "An out-of-possession landlord is not liable
for personal injuries sustained on the premises unless the
landlord retains control of the property or is contractually
obligated to perform maintenance and repairs" (Domin-
guez v Food City Mkts., 303 A.D.2d 618, 619, 756
N.Y.S.2d 637 [2003]; Reidy v Burger King Corp., 250
A.D.2d 747, 748, 673 N.Y.S.2d 441 [1998]). On the
present set of facts, Mazzella relinquished control over
the property, and [***4] was not obligated under the
terms of the lease to maintain and repair the premises
(see Stark v Port Auth. of N.Y. & N.J., 224 A.D.2d 681,
639 N.Y.S.2d 57 [1996]; Reidy v BurgerKing, Corp.,
supra at 748).
[HN2] "Although reservation of a right of entry may
constitute sufficient retention of control to impose liabil-
ity upon an out-of-possession landlord for injuries caused
by a dangerous condition which constitutes a violation of
a duty imposed by statute, this exception applies only
where 'a specific statutory violation exists and there is a
significant structural or design defect'" (Nunez v Bleyer
& Co., 304 A.D.2d 734, 757 N.Y.S.2d 798 [2003], quot-
ing Fucile v Grand Union Co., 270 A.D.2d 227, 705
N.Y.S.2d 377 [2000]). However, the plaintiff did not al-
lege either a violation of a specific statutory safety provi-
sion or the existence of a significant structural or design
[*734] defect (see Thompson v Port Auth. of N.Y. &
N.J., 305 A.D.2d 581, 582, 761 N.Y.S.2d 75 [2003]; Nun-
ez v Bleyer & Co., supra at 734; Stark v Port Auth. of
N.Y. & N.J., supra at 682).
Moreover, Mazzella was free to contract with his
tenant, M & G Car Wash, Inc., to maintain and repair the
[***5] premises and to allocate the risk of liability to
third parties by the procurement of liability insurance for
their mutual benefit (see Morel v City of New York, 192
A.D.2d 428, 429, 597 N.Y.S.2d 8 [1993]; Schumacher v
Lutheran [**560] Community Servs., 177 A.D.2d 568,
576 N.Y.S.2d 162 [1991]). Waheguru expressly assumed
those obligations upon execution of the assignment.
Accordingly, Mazzella was entitled to summary
judgment dismissing the complaint and all cross claims
insofar as asserted against him as he demonstrated his
prima facie entitlement to such relief, and the opposition
was insufficient to establish a triable issue of fact war-
ranting a denial of the motion (see generally Zuckerman
v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718,
427 N.Y.S.2d 595 [1980]).
In addition, pursuant to the indemnification clause in
the lease, Mazzella was entitled to summary judgment on
his cross claim against the assignee, Waheguru, for con-
tractual indemnification, which includes attorney's fees,
expenses, costs, and disbursements. Accordingly, we re-
mit the matter to the Supreme Court, Suffolk County, for
a determination of the amount of attorney's fees, ex-
penses, costs and disbursements to be awarded (see
Dominguez v Food City Mkts., supra at 620). [***6]
S. Miller, J.P., Luciano, Adams and Townes, JJ., con-
cur.

22 of 55 DOCUMENTS

Analysis
As of: Sep 10, 2008

Ronald Ernish et al., Respondents, v City of New York et al., Appellants.

2288

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

2 A.D.3d 256; 768 N.Y.S.2d 325; 2003 N.Y. App. Div. LEXIS 13298

December 16, 2003, Decided

 Page 62

December 16, 2003, Entered

SUBSEQUENT HISTORY: Related proceeding at Nat'l

Union Fire Ins. Co. v. Universal Fabricators, Inc., 2007 LexisNexis(R) Headnotes
U.S. Dist. LEXIS 49284 (S.D.N.Y., July 6, 2007)

CASE SUMMARY:
PROCEDURAL POSTURE: The Supreme Court, New
York County (New York), directed a jury verdict at the
close of trial evidence in favor of plaintiffs, an injured
worker and others, on the issue of the liability of defend-
ants, a city and others, pursuant to N.Y. Lab. Law §
240(1), and entered judgment in favor of plaintiffs in the
total sum of $ 3 million. Defendants appealed the judg-
ment.
OVERVIEW: The injured worker was injured when a
ladder and/or makeshift scaffold on which he was stand-
ing collapsed. The appellate court held that in order to
prevail on an N.Y. Lab. Law § 240(1) claim, the injured
worker had to show that the violation of the statute was a
proximate cause of his injuries. Notwithstanding defend-
ants' assertion to the contrary, there were no material in-
consistencies between the injured worker's deposition
and his trial testimony. Plaintiffs demonstrated that the
makeshift scaffold and/or the ladder collapsed, and that
the injured worker had no safety equipment, all of which
contributed to his fall. This constituted a prima facie
showing of a statutory violation, proximately causing his
injuries. Defendants failed to controvert this showing or
to establish that either the scaffold or the ladder was so
constructed, placed, and operated as to give proper pro-
tection to the worker in accordance with N.Y. Lab. Law §
240(1). However, the appellate court held that the injured
worker's present abilities and activities warranted the
conclusion that the damages for future loss deviated ma-
terially from what was reasonable compensation under
the circumstances.
OUTCOME: The judgment was modified, on the facts,
to vacate the awards for future pain and suffering and fu-
ture loss of services, and to direct a new trial on the is-
sues of such damages only, and otherwise was affirmed,
without costs, unless plaintiffs stipulated to a reduction
of the awards, and to the entry of an amended judgment
in accordance therewith.
CORE TERMS: scaffold, ladder, makeshift, collapsed,
future pain, loss of services, suffering, issue of liability,
contributory negligence, ironworker, pier, trial evidence,
safety equipment, new trial, stipulate, reduction, misuse,
boom, future damages, head injuries, right arm,
shoulders, concrete, partner, wrench, floor
Labor & Employment Law > Occupational Safety &
Health > Civil Liability
[HN1] In order to prevail on a N.Y. Lab. Law § 240(1)
claim, the injured worker must show that the violation of
the statute was a proximate cause of his injuries.
HEADNOTES
[***1] Labor--Safe Place to Work.--Plaintiffs were
entitled to directed jury verdict at close of trial evidence
on issue of liability pursuant to Labor Law § 240 (1)
since plaintiffs demonstrated that makeshift scaffold
and/or ladder collapsed, and that worker had no safety
equipment--defendants' attempt to argue plaintiff's mis-
use of devices raised, at best, issue of contributory negli-
gence, which is not defense to section 240 (1) claim.
Damages--Future Damages.--Although 63-year-old
ironworker sustained serious head injuries, as well as in-
juries to both shoulders and his right arm, when he fell to
concrete floor of pier, damages awarded were excessive;
new trial on future damages directed unless plaintiffs
stipulate to reduction of $ 1.4 million award for future
pain and suffering to $ 700,000 and $ 250,000 award for
loss of services to $ 125,000.
COUNSEL: Scott N. Singer, for Plaintiffs-Respondents
David H. Fromm, for Defendants-Appellants.
JUDGES: Concur--Nardelli, J.P., Andrias, Rosenberger,
Friedman, JJ.
OPINION
[*256] [**325] Judgment, Supreme Court, New
York County (Emily Goodman, J.), entered February 28,
2003, which, to the extent appealed from as limited by
defendants' briefs, directed a jury verdict at the close of
trial evidence in plaintiffs' favor on the issue of liability
pursuant to Labor Law § 240 (1), and entered judgment
in favor of plaintiffs in the total sum of $ 3 million, ap-
portioning liability as $ 1.1 million and $ 1.4 million, re-
spectively, for past and 10 years of future pain and suf-
fering, and on the derivative cause of action, $ 250,000
for past and $ 250,000 for 10 years of future loss of ser-
vices, and denied defendants' motion to set aside the ver-
dict, unanimously modified, on the facts, to vacate the
awards for future pain and suffering and future loss of
 Page 63

services, and to direct a new trial on the issues of such
damages only, and otherwise affirmed, without costs, un-
less plaintiffs, within [***2] 20 days of service of a copy
of this order with [*257] notice of entry, stipulate to a
reduction of the awards for future pain and suffering to $
700,000 and for future loss of services to $ 125,000, and
to the entry of an amended judgment in accordance
therewith.
The injured plaintiff was an ironworker who, at the
time of his accident, was tightening bolts with a hydraul-
ic wrench on a reconstructed gangway at Pier 88, on
Manhattan's West Side. Working with a partner at about
12 feet above ground level, plaintiff fell when the ladder
and/or makeshift scaffold he was standing on collapsed.
At the time, plaintiff was attempting to pass the head of
the wrench to his partner. He placed his right foot on the
ladder, while balancing the rest of his weight on the
makeshift scaffold he had erected and secured to the
boom of a stationary crane and the ladder and/or scaffold
collapsed under his weight.
At the close of the evidence at trial, the court direc-
ted a verdict in plaintiffs' favor on the issue of liability
pursuant to Labor Law § 240 (1). After the jury itemized
damages, the court denied defendants' motion to set aside
the verdict.
[HN1] In order to prevail on a section 240 (1) [***3]
claim, the injured worker must show that the violation
of the statute was a proximate cause of his injuries
(Bland v Manocherian, 66 N.Y.2d 452, 488 N.E.2d 810,
497 N.Y.S.2d 880 [1985]). Notwithstanding defendants'
assertion to the contrary, there were no material incon-
sistencies between the injured plaintiff's deposition and
his trial [**326] testimony so as to raise a question of
fact for the jury's consideration. Plaintiffs demonstrated,
under either "version" of the accident, that the makeshift
scaffold and/or the ladder collapsed, and that he had no
safety equipment, all of which contributed to his fall and
resulting injuries (see John v Baharestani, 281 A.D.2d
114, 721 N.Y.S.2d 625 [2001]). This constituted a prima
facie showing of a statutory violation, proximately caus-
ing his injuries (see Zimmer v Chemung County Per-
forming Arts, 65 N.Y.2d 513, 482 N.E.2d 898, 493
N.Y.S.2d 102 [1985]). Defendants, who presented no li-
ability witnesses, failed to controvert this showing or to
establish that either the scaffold or the ladder was "so
constructed, placed and operated as to give proper pro-
tection" to this worker in accordance with section 240
(1). Moreover, defendants' attempt to argue plaintiff's
misuse of the devices raises, at best, an issue of [***4]
contributory negligence, which is not a defense to a sec-
tion 240 (1) claim (see Zimmer, 65 N.Y.2d at 521;
Hernandez v 151 Sullivan Tenant Corp., 307 A.D.2d
207, 208, 762 N.Y.S.2d 60 [2003]). Even if the makeshift
device collapsed because of plaintiff's faulty rigging of
the scaffold to the boom of the crane, such contributory
negligence would not preclude summary disposition in
plaintiffs' favor on liability (see Hauff v CLXXXII Via
Magna Corp., 118 A.D.2d 485, 499 N.Y.S.2d 958
[1986]).
[*258] On the issue of damages, the evidence at tri-
al established that the 63-year-old ironworker sustained
serious head injuries, as well as injuries to both shoulders
and his right arm, when he fell to the concrete floor of
the pier. Nevertheless, his present abilities and activities
warrant the conclusion that the damages for future loss
deviate materially from what is reasonable compensation
under the circumstances to the extent indicated.
We have considered defendants' remaining argu-
ments and find them unavailing.
Concur--Nardelli, J.P., Andrias, Rosenberger and
Friedman, JJ.

23 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

Julia Davis, Appellant, v. HSS Properties Corporation et al., Respondents, et al., De-
fendants.

2173

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT
 Page 64

1 A.D.3d 153; 767 N.Y.S.2d 72; 2003 N.Y. App. Div. LEXIS 11855

November 13, 2003, Decided

November 13, 2003, Entered

SUBSEQUENT HISTORY: [***1]

Appeal denied by Davis v. HSS Props. Corp., 1 N.Y.3d LexisNexis(R) Headnotes
509, 808 N.E.2d 1277, 2004 N.Y. LEXIS 199, 777
N.Y.S.2d 18 (N.Y., Feb. 19, 2004)

PRIOR HISTORY: Davis v. HSS Props. Corp., 257
A.D.2d 500, 685 N.Y.S.2d 16, 1999 N.Y. App. Div. LEXIS
649 (N.Y. App. Div. 1st Dep't, 1999)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant injured person
sued respondent property owner and others, seeking
damages for injuries allegedly sustained by a dangerous
condition in a building owned by the property owner.
Upon a jury verdict, the Supreme Court, Bronx County
(New York), dismissed the complaint as against the prop-
erty owner. The injured person appealed.
Torts > Premises Liability & Property > General
Premises Liability > Dangerous Conditions > General
Overview
Torts > Products Liability > Design Defects
[HN1] In the absence of a statute imposing liability per
se or a contractual obligation to repair and maintain the
premises, an out-of-possession owner can be held liable
for a subsequent injury resulting from a dangerous condi-
tion in the building under a theory of constructive notice
only where it has reserved the right to enter the premises
to perform inspection, maintenance, and repairs at the
tenant's expense and injury was caused by a significant
structural or design defect that is contrary to a specific
statutory safety provision.

OVERVIEW: The injured person stepped into a depres- HEADNOTES

sion created by removal of a tile in the floor of a room
Negligence--Maintenance of Premises.--Since re-
occupied by the nonparty tenant of the property owner.
cord contains testimony from which jury could reason-
Under the lease, the tenant was responsible for the main-
ably find that there was no defect in floor at time tenant
tenance of the premises. The appellate court ruled that,
took possession of demised premises and that no agent of
absent a statute imposing liability per se or a contractual
defendant landlord was aware of subsequent removal of
obligation to repair and maintain the premises, the prop-
floor tiles, evidence does not mandate conclusion that de-
erty owner, as an out-of-possession owner could be held
fendant landlord had actual knowledge of hazardous con-
liable for dangerous condition under a theory of con-
dition.
structive notice only if it reserved the right to enter the
premises to perform inspection, maintenance, and repairs
COUNSEL: For Plaintiff-Appellant: Herbert Monte
at the tenant's expense, and injury was caused by a sig-
Levy.
nificant structural or design defect contrary to a specific
statutory safety provision. The jury could reasonably
For Defendants-Respondents: Herbert Rubin.
have found that there was no defect in the floor when the
tenant took possession and that no agent of the property
JUDGES: Concur--Buckley, P.J., Mazzarelli, Andrias,
owner was aware of the removal of the tiles. Thus, the
Sullivan and Marlow, JJ.
evidence did not mandate the conclusion that the prop-
erty owner had actual knowledge of the hazardous condi-
OPINION
tion. The trial court properly declined to instruct the jury
that the alleged violation constituted negligence per se. [*154] [**73] Judgment, Supreme Court, Bronx
County (Anne Targum, J.), entered on or about October
OUTCOME: The judgment was affirmed. 16, 2001, which, upon a jury verdict, dismissed the com-
plaint as against defendant HSS Properties Corporation
CORE TERMS: tenant's, repair, demised premises, re- (HSS), unanimously affirmed, without costs.
moval, floor, record contains, jury verdict, reasonably
Plaintiff sustained injury when she stepped into a
find, floor tiles, actual knowledge, hazardous condition,
10-inch depression created by the removal of a tile in a
right to enter, constructive notice, landlord
 Page 65

suspended floor installed by defendant HSS in the com-
puter room of its tenant, nonparty Hospital for Special
Surgery, at the tenant's request. Under the lease, the hos-
pital is responsible for the maintenance of the demised
premises, including structural and nonstructural repairs
caused by the "carelessness, omission, neglect or im-
proper conduct of Tenant ... or which arise out of any
work ... done for or supplied to the tenant." The owner
remains responsible for maintaining the exterior and pub-
lic areas of the building and reserves the right to make
certain repairs [***2] for which the tenant is responsible
at the tenant's expense.
[HN1] In the absence of a statute imposing liability
per se (see Elliott v City of New York, 95 N.Y.2d 730,
734, 724 N.Y.S.2d 397, 747 N.E.2d 760 [2001]; Juarez v
Wavecrest Mgt. Team Ltd., 88 N.Y.2d 628, 638, 649
N.Y.S.2d 115, 672 N.E.2d 135 [1996]) or a contractual
obligation to repair and maintain the premises (Putnam v
Stout, 38 NY2d 607, 345 N.E.2d 319, 381 N.Y.S.2d 848
[1976]; Manning v New York Tel. Co., 157 A.D.2d 264,
266, 555 N.Y.S.2d 720 [1990]), an out-of-possession
owner can be held liable for a subsequent injury resulting
from a dangerous condition in the building under a the-
ory of constructive notice only where it has reserved the
right to enter the premises to perform inspection, main-
tenance and repairs at the tenant's expense and injury
was caused by "a significant structural or design defect
that is contrary to a specific statutory safety provision"
( McDonald v Riverbay Corp., 308 A.D.2d 345, 346, 764
N.Y.S.2d 185, 186 [2003], quoting Johnson v Urena
Serv. Ctr., 227 A.D.2d 325, 326, 642 N.Y.S.2d 897
[1996], lv denied 88 NY2d 814, 673 N.E.2d 1243, 651
N.Y.S.2d 16 [1996]; [***3] see Guzman v Haven Plaza
Hous. Dev. Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d
451, 509 N.E.2d 51 [1987]).
The record contains testimony from which the jury
could reasonably find that there was no defect in the
floor at the time the Hospital for Special Surgery took
possession of the demised premises and that no agent of
defendant HSS was aware of the subsequent removal of
the floor tiles. Thus, the evidence does not mandate the
conclusion that HSS had actual knowledge of the hazard-
ous condition. Furthermore, the trial court properly de-
clined to instruct the jury, over plaintiff's objection, that
the alleged violation constitutes negligence per se. While
the owner did not completely divest itself of the right to
enter and make repairs to the demised premises, the as-
serted violation of provisions of the Administrative Code
of the City of New York does [*155] not make the own-
er negligent as a matter of law; rather, proof of the viola-
tion is merely some evidence [**74] of negligence ( El-
liott at 734-735). This Court's observation, on a summary
record, that defendant HSS is deemed to have construct-
ive notice of a violation of the Administrative Code
( 257 A.D.2d 500, 501-502, 685 N.Y.S.2d 16 [1999])
[***4] is not tantamount to a finding of liability and, in
any event, does not preclude our unfettered review of the
legal sufficiency of the evidence supporting the jury ver-
dict ( Metropolitan Life Ins. Co. v Noble Lowndes Intl.,
192 A.D.2d 83, 87-88, 600 N.Y.S.2d 212 [1993], affd 84
NY2d 430, 643 N.E.2d 504, 618 N.Y.S.2d 882 [1994]).
We have considered plaintiff's remaining contentions
and find them unavailing.
Concur--Buckley, P.J., Mazzarelli, Andrias, Sullivan
and Marlow, JJ.

24 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Lydia Jimenez, Plaintiff, v. LMA International Ltd. et al., Appellants, et al., Defend-
ants. United House of Prayer for All People of the Church on the Rock of the
Apostolic Faith, Third-Party Plaintiff-Appellant, v. City of New York et al., Third-
Party Defendants, and Farrell Construction Services, Inc., Third-Party Defendant-
Appellant. (And Other Actions.) Patrick Glynn et al., Respondents, v. United House
of Prayer for All People of the Church on the Rock of the Apostolic Faith et al., Ap-
pellants, et al., Defendants. (And Other Actions.)

1425

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-


MENT
306 A.D.2d 136; 762 N.Y.S.2d 354; 2003 N.Y. App. Div. LEXIS 6982
June 17, 2003, Decided
June 17, 2003, Entered
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff, an injured party,
sued defendants, a landlord and contractors, to recover
for personal injuries. The Supreme Court, Bronx County
(New York), denied the motion of the landlord for sum-
mary judgment and denied, in part, the motion of the
contractors for summary judgment dismissing all claims,
cross claims, and third-party claims against them. De-
fendants appealed the order.
OVERVIEW: The landlord had a common-law duty to
take minimal precautions to protect tenants, such as the
non-settling plaintiffs, from a third party's foreseeable
criminal conduct. It was not absolved of that duty by its
relocation of church activities pending renovation of its
church house, responsibility for the church house not
having been fully assumed by another party during the
period of relocation. Therefore, the appellate court held
that the trial court properly denied the landlord's sum-
mary judgment motion. The appellate court further held
that the contractors had not demonstrated as a matter of
law that they owed no duty to strangers to the contract
with the church. As for the contractors' contention that
the horrific assault giving rise to this cause of action was
a superseding cause breaking the causal chain, while the
gunman's violent behavior was not a foreseeable con-
sequence of a contractor's alleged negligence, a seriously
injurious fire clearly was, and the contractors failed to
show that any of the injuries suffered by plaintiffs resul-
ted purely from the gunman's rage and not from the fire.
OUTCOME: The order was affirmed, without costs.
CORE TERMS: general contractors, church house,
foreseeable, relocation, church, gunman's, summary
judgment
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Crimin-
al Acts
[HN1] A landlord, has a common-law duty to take min-
Page 66
imal precautions to protect tenants from a third party's
foreseeable criminal conduct.
COUNSEL: [***1] For Defendants-Appellants: James
C. Miller, William D. Blakely,
For Third-Party Plaintiff-Appellant: William D. Blakely.
For Third-Party Defendant-Appellant: James C. Miller.
For Plaintiffs-Respondents: David Schultz.
For Defendants-Appellants: William D. Blakely, James
C. Miller.
JUDGES: Concur--Ellerin, J.P., Williams, Lerner and
Gonzalez, JJ.
OPINION
[*136] [**355] Order, Supreme Court, Bronx
County (Stanley Green, J.), entered on or about October
25, 2002, which, to the extent appealed from as limited
by the briefs, denied the motion of defendant United
House of Prayer (UHOP) for summary judgment dis-
missing claims against it for negligent provision of se-
curity and denied, in part, the motion of defendants LMA
International and Farrell Construction for summary judg-
ment dismissing all claims, cross claims and third-party
claims against them, unanimously affirmed, without
costs.
As [HN1] a landlord, UHOP had a common-law
duty to take minimal precautions to protect tenants, such
as the nonsettling plaintiffs, from a third party's foresee-
able criminal conduct (see Burgos v Aqueduct Realty, 92
N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163
[1998]). [***2] It was not absolved of that duty by its
relocation of church activities pending renovation of its
church house, responsibility for the church house not
having been fully assumed by another party during the
period of relocation (cf. Bennett v Twin Parks Northeast
Houses, 261 A.D.2d 200, 201, 689 N.Y.S.2d 507 [1997];
Lewis v McDonald's Corp., 245 A.D.2d 270, 272, 664
N.Y.S.2d 477 [1997]).
Defendant general contractors have not demon-
strated as a matter of law that they owed no duty to
 Page 67

strangers to the contract with defendant church. The
evidence of record permits the inference that the general
contractors undertook a duty to plaintiffs under one or
more of the three circumstances set forth in Church v
Callanan Indus. (99 N.Y.2d 104, 111-113, 752 N.Y.S.2d
254, 782 N.E.2d 50 [2002]). Whether plaintiffs' harm
was proximately caused by a breach of any such duty is,
on this record, a question of fact (see e.g. Equitable Life
Assur. Socy. v Nico Constr. Co., 245 A.D.2d 194, 666
N.Y.S.2d 602 [1997]). As for the contention that the hor-
rific assault giving rise to this cause of action was a su-
perseding cause [*137] breaking the causal chain, while
the gunman's [***3] violent behavior was not a foresee-
able consequence of the general contractors' alleged neg-
ligence, a seriously injurious fire clearly was, and de-
fendants failed to show that any of the injuries suffered
by the current plaintiffs resulted purely from the gun-
man's rage and not from the fire (see Derdiarian v Felix
Contr. Corp., 51 N.Y.2d 308, 314-316, 434 N.Y.S.2d 166,
414 N.E.2d 666 [1980]).
We have considered appellants' remaining arguments
and find them unavailing.
Concur--Ellerin, J.P., Williams, Lerner and Gonza-
lez, JJ.

25 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

Beverly Lowenthal et al., Appellants, v. Theodore H. Heidrich Realty Corp. et al.,

Respondents. (Index No. 13396/00)

2002-04838, 2002-07864

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

304 A.D.2d 725; 759 N.Y.S.2d 497; 2003 N.Y. App. Div. LEXIS 4352

March 18, 2003, Argued

April 21, 2003, Decided

CASE SUMMARY: firmative negligence. The tenants' alleged constructive

PROCEDURAL POSTURE: Appellant injured party
sued respondents, a village, a building owner, and build-
ing tenants, in the Supreme Court, Nassau County (New
York), for personal injuries arising from tripping on a
sidewalk raised by expanding tree roots. The trial court
granted the summary judgment motions of all respond-
ents, dismissing the complaint, and the injured party ap-
pealed.
OVERVIEW: The appellate court held the village had
no prior notice of the alleged defect in the sidewalk, as
required by N.Y. Village Law § 6-628 and N.Y. C.P.L.R.
9804. There was no evidence the village planted the tree,
and, if it did, in addition to its failure to control the tree's
roots, this was at most was nonfeasance, rather than af-
notice of the alleged defect was immaterial to the vil-
lage's liability. Neither the owner nor lessees of the ad-
joining building could be held liable unless they created
the condition, voluntarily but negligently made repairs,
caused the condition to occur because of some special
use, or violated a statute or ordinance placing an obliga-
tion on them to maintain the sidewalk which imposed li-
ability for resulting injury. The tenants made a prima
facie showing of entitlement to judgment as a matter of
law, as did the owner. Photographs by the injured party's
expert raised no triable issue.
OUTCOME: The trial court's judgment was affirmed.
CORE TERMS: summary judgment, sidewalk, issue of
fact, tenants', matter of law, entitlement, abutting, triable,
lessee, repair, prima facie, failed to raise, affirmative

negligence, properly granted, special use, negligently, or-
dinance, notice, roots, personal injuries
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General
Premises Liability > Duties of Care > Duty off Premises
> Sidewalks & Streets
Torts > Premises Liability & Property > Lessees &
Lessors > General Overview
[HN1] The owner or the lessee of land abutting a public
sidewalk owes no duty to keep the sidewalk in a safe
condition. Liability may only be imposed on the abutting
owner or lessee where it either creates the condition, vol-
untarily but negligently makes repairs, causes the condi-
tion to occur because of some special use, or violates a
statute or ordinance placing upon the owner or lessee the
obligation to maintain the sidewalk which imposes liabil-
ity upon that party for injuries caused by a violation of
that duty.
COUNSEL: [***1] Zisholtz & Zisholtz, LLP, Mineola,
N.Y., (Gerald Zisholtz and Edward S. Satran of counsel),
for appellants.
Baxter & Smith, P.C., Jericho, New York, N.Y., (Anne V.
Malone of counsel), for respondent Theodore H. Heid-
rich Realty Corp.
Ted M. Tobias, Melville, N.Y., (Leslie McHugh of coun-
sel), for respondents Arthur Copeland, Inc., and Eleanor
Heidrich, Inc.
Greenfield & Reilly, Jericho, N.Y., (Paul McBride of
counsel), for respondent Incorporated Village of Cedar-
hurst.
JUDGES: SANDRA J. FEUERSTEIN, J.P., NANCY E.
SMITH, HOWARD MILLER, SANDRA L. TOWNES,
JJ. Feuerstein, J.P., Smith, H. Miller and Townes, JJ.,
concur.
OPINION
[*725] [**498] In an action to recover damages
for personal injuries, etc., the plaintiffs appeal (1), as
limited by their brief, from so much of an order of the
Supreme Court, Nassau County (Joseph, J.), dated April
10, 2002, as granted the respective motions of the de-
fendants Eleanor Heidrich, Inc., and Arthur Copeland
Cleaners, and the defendant Incorporated Village of Ce-
darhurst, for summary judgment dismissing the com-
plaint insofar as [***2] asserted against them, and (2)
Page 68
from an order of the same court, dated July 15, 2002,
which granted the motion of the defendant Theodore H.
Heidrich Realty Corp. for summary judgment dismissing
the complaint insofar as asserted against it.
Ordered that the order dated April 10, 2002, is af-
firmed insofar as appealed from; and it is further,
Ordered that the order dated July 15, 2002, is af-
firmed; and it is further,
Ordered that one bill of costs is awarded to the re-
spondents appearing separately and filing separate briefs.
The plaintiff Beverly Lowenthal allegedly sustained
personal injuries when she tripped and fell on a sidewalk
slab raised by expanding tree roots. The incident oc-
curred within the jurisdiction of the defendant Incorpor-
ated Village of Cedarhurst outside of commercial
premises leased to the defendant Eleanor Heidrich, Inc.,
and the defendant Arthur Copeland Cleaners (hereinafter
the tenants) by the owner, the defendant Theodore Heid-
rich Realty Corp. (hereinafter the owner).
The Village made a prima facie showing of entitle-
ment to [*726] judgment as a matter of law. In opposi-
tion, the plaintiffs failed to raise a triable issue of fact. In
particular, the plaintiffs [***3] concede that the Village
did not receive prior notice of the alleged defect in the
sidewalk, as required by Village Law § 6-628 and CPLR
9804. Nonetheless, they claim that summary judgment
should not have been granted to the Village, as there is an
issue of fact with respect to whether it created the condi-
tion through its affirmative negligence (see Morrison v
Incorporated Vil. of Freeport, 283 A.D.2d 621, 725
N.Y.S.2d 866 [2001]; Pamas v Dickson, 267 A.D.2d 219,
699 N.Y.S.2d 311 [1999]). We disagree. Although there
is no evidence that the Village planted the tree [**499]
in question, even assuming that it had, such an act, in ad-
dition to the Village's failure to control the roots of the
tree, would at most constitute nonfeasance, not affirmat-
ive negligence (see Monteleone v Incorporated Vil. of
Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549
N.E.2d 459 [1989]; Zizzo v City of New York, 176
A.D.2d 722, 574 N.Y.S.2d 966 [1991]; Michela v County
of Nassau, 176 A.D.2d 707, 574 N.Y.S.2d 965 [1991]).
Accordingly, the Supreme Court properly granted the
Village's motion for summary judgment.
Further, the Supreme Court properly granted [***4]
the tenants' motion for summary judgment. [HN1] "The
owner or the lessee of land abutting a public sidewalk
owes no duty to keep the sidewalk in a safe condition"
(Lattanzi v Richmond Bagels, 291 A.D.2d 434, 737
N.Y.S.2d 391 [2002]). Liability may only be imposed on
the abutting owner or lessee where it either created the
condition, voluntarily but negligently made repairs,
caused the condition to occur because of some special
 Page 69

use, or violated a statute or ordinance placing upon the
owner or lessee the obligation to maintain the sidewalk
which imposes liability upon that party for injuries
caused by a violation of that duty (see McGee v City of
New York, 252 A.D.2d 483, 675 N.Y.S.2d 130 [1998];
Bloch v Potter, 204 A.D.2d 672, 612 N.Y.S.2d 236
[1994]). The tenants made a prima facie showing of en-
titlement to judgment as a matter of law. The affidavits of
the plaintiffs' experts were insufficient to raise a triable
issue of fact, as their opinions were based solely on re-
views of unauthenticated photographs of the accident
scene (see Banks v Freeport Union Free School Dist.,
302 A.D.2d 341, 753 N.Y.S.2d 890 [2003]; Gutierrez v
Cohen, 227 A.D.2d 447, 643 N.Y.S.2d 121 [1996]),
[***5] and, in any event, were submitted on the issue of
the tenants' alleged constructive notice of the alleged
defect, which is immaterial, as the authorities cited above
make clear.
Finally, the owner made a prima facie showing of
entitlement to judgment as a matter of law. There was no
evidence that it created the alleged defect, voluntarily but
negligently made repairs to the sidewalk before the acci-
dent, caused the condition to occur because of some spe-
cial use, or violated a [*727] statute or ordinance which
imposes liability on the abutting entity for failure to re-
pair (see Loforese v Cadillac Fairview Shopping Ctrs.,
U.S., 235 A.D.2d 399, 652 N.Y.S.2d 84 [1997]). As the
plaintiffs failed to raise a triable issue of fact regarding
the owner's alleged negligence, the Supreme Court prop-
erly granted the owner's motion for summary judgment.
The plaintiffs' remaining contentions are without
merit.
Feuerstein, J.P., Smith, H. Miller and Townes, JJ.,
concur.

26 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

Joseph Brennan, Respondent, v. New York City Housing Authority, Appellant. (And
a Third-Party Action.) (Index No. 26155/96)

2002-01123

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

302 A.D.2d 483; 756 N.Y.S.2d 73; 2003 N.Y. App. Div. LEXIS 1644

January 21, 2003, Argued

February 18, 2003, Decided

PRIOR HISTORY: [***1] In an action to recover
damages for personal injuries, the defendant appeals
from an order of the Supreme Court, Kings County
(Hutcherson, J.), dated December 6, 2001, which denied
its motion for summary judgment dismissing the com-
plaint.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff fireman brought
a negligence action against defendant housing authority
to recover damages for injuries sustained while respond-
ing to a natural gas explosion and fire at an apartment in
a housing project owned and operated by the housing au-
thority. The Supreme Court, Kings County (New York),
denied the housing authority's motion for summary judg-
ment. The housing authority appealed.
OVERVIEW: The fireman alleged that the housing au-
thority was negligent in failing to promptly respond to
tenant complaints of a gas odor. The fireman predicated
liability under N.Y. Gen. Mun. Law § 205-a on the al-
leged violations by the housing authority of N.Y. Comp.
Codes R. & Regs. tit. 9, § 1196.1(b) and New York City,
N.Y., Admin. Code §§ 27-127, 27-128, which provided

generally that the owner of a building was required to
maintain it in a safe condition. The appellate court ruled
that under N.Y. Gen. Mun. Law § 205-a(3), injured fire-
fighters had a right of recovery regardless of whether the
injury was caused by the violation of a provision which
codified a common-law duty and regardless of whether
the injury was caused by the violation of a provision
prohibiting activities or conditions which increased the
dangers already inherent in the work of a firefighter.
Since the enactment of N.Y. Gen. Oblig. Law § 11-106, a
common-law negligence action was no longer barred by
the firefighters' rule. The affidavit submitted by the fire-
man's expert raised a triable issue of fact as to whether
there was a connection between the alleged predicate vi-
olations and the fireman's injuries.
OUTCOME: The order was affirmed.
CORE TERMS: housing, fire department, cause of ac-
tion, common-law, explosion, firefighter, apartment, pre-
dicate, summary judgment, triable issue of fact, respond-
ing, promptly, notified, tenant, leak, odor
LexisNexis(R) Headnotes
Governments > Local Governments > Claims By &
Against
Governments > Local Governments > Fire Depart-
ments
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN1] The 1996 amendments to N.Y. Gen. Mun. Law §
205-a added a new subdivision (3) which provides in-
jured firefighters with a right of recovery regardless of
whether the injury is caused by the violation of a provi-
sion which codifies a common-law duty and regardless
of whether the injury is caused by the violation of a pro-
vision prohibiting activities or conditions which increase
the dangers already inherent in the work of any officer,
member, agent, or employee of any fire department. N.Y.
Gen. Mun. Law § 205-a(3). Accordingly, both N.Y.
Comp. Codes R. & Regs. tit. 9, § 1196.1(b) and New
York City, N.Y., Admin. Code §§ 27-127, 27-128 are suf-
ficient predicates for a N.Y. Gen. Mun. Law § 205-a
cause of action.
Torts > Premises Liability & Property > General
Premises Liability > Defenses > Firefighter's Rule
[HN2] Since the enactment of N.Y. Gen. Oblig. Law §
11-106, a common-law negligence cause of action is no
longer barred by the so-called "firefighters' rule." 1996
N.Y. Laws ch. 703. The new legislation provides for a
Page 70
common-law cause of action against negligent landown-
ers in certain situations.
COUNSEL: Herzfeld & Rubin, P.C., New York, N.Y.
(Herbert Rubin, David B. Hamm, and Jeannine LaPlace
of counsel), for appellant.
Barasch McGarry Salzman Penson & Lim, New York,
N.Y. (James P. McGarry of counsel), for respondent.
JUDGES: Ritter, J.P., Altman, S. Miller and Townes, JJ.,
concur.
OPINION
[*483] [**74] Ordered that the order is affirmed,
with costs.
The plaintiff, a firefighter, alleged that he was in-
jured on October 20, 1995, while responding to a natural
gas explosion and fire. The explosion and fire occurred
in an apartment in the Marlborough Houses in Brooklyn,
a housing project owned and operated by the defendant
New York City Housing Authority (hereinafter the Hous-
ing Authority). The plaintiff allegedly was injured when
part of a collapsed interior [***2] wall gave way from
underneath him, causing him to fall. The third-party de-
fendant, Candido Rivera, admitted that on October 19,
1995, he stole a stove from the subject apartment and re-
moved the hose from the gas line, which allowed gas to
leak into the apartment. The plaintiff commenced this ac-
tion to recover damages under General Municipal Law §
205-a and for common-law negligence alleging, inter
alia, that had the Housing Authority promptly responded
to tenant complaints of an odor of gas and notified the
fire department, the explosion would not have occurred.
The plaintiff predicates liability under General Municip-
al Law § 205-a on the alleged violations by the Housing
Authority of a provision of the New York State Uniform
Fire Prevention and Building Code which mandates that
"the [*484] fire department shall be promptly notified
... upon discovery or being apprised of an uncontrolled
hazardous gas leak" (9 NYCRR 1196.1 [b]) and New
York City Administrative Code §§ 27-127 and 27-128,
which provide generally that the owner of a building
must maintain [***3] it in a safe condition. The Su-
preme Court denied the Housing Authority's motion for
summary judgment dismissing the complaint. We affirm.
After the Housing Authority made out a prima facie
case for summary judgment dismissing the General Mu-
nicipal Law § 205-a cause of action, the affidavit submit-
ted by the plaintiff's expert raised a triable issue of fact as
to whether there is any practical or reasonable connec-
tion between the alleged predicate violations and the
plaintiff's injuries (see Mullen v Zoebe, Inc., 86 N.Y.2d
 Page 71

135, 630 N.Y.S.2d 269, 654 N.E.2d 90; Zanghi v Niagara
Frontier Transp. Commn., 85 N.Y.2d 423, 626 N.Y.S.2d
23, 649 N.E.2d 1167). The Housing Authority contends
that liability may not be imposed under General Muni-
cipal Law § 205-a for the alleged violations that caused
the explosion in the first instance. We disagree. [HN1]
The 1996 amendments to General Municipal Law § 205-
a added a new subdivision (3) which provides injured
firefighters with a right of recovery "regardless of wheth-
er the injury ... is caused by the violation of a provision
which codifies [***4] a common-law duty and regard-
less of whether the injury ... is caused by the violation of
a provision prohibiting activities or conditions which in-
crease the dangers already inherent in the work of any of-
ficer, member, agent or employee of any fire department"
(General Municipal Law § 205-a [3], L 1996, ch 703, §
3). Accordingly, contrary to the contentions of the Hous-
ing Authority, both 9 NYCRR 1196.1 (b) and New York
City Administrative Code §§ 27-127 and 27-128 are suf-
ficient predicates for a General Municipal Law § 205-a
cause of action (see Hart v DiPiazza, 262 A.D.2d 283,
691 N.Y.S.2d 109; Capuano v Platzner Intl. Group, 260
A.D.2d 527, 688 N.Y.S.2d 236; Clow v Fisher, 228
A.D.2d 11, 652 N.Y.S.2d 870).
As the Housing Authority correctly concedes in its
reply brief, [HN2] since the enactment of General Oblig-
ations Law § 11-106, the plaintiff's common-law negli-
gence [**75] cause of action is no longer barred by the
so-called "firefighters' rule" (see L 1996, ch 703; Galapo
v City of New York, 95 N.Y.2d 568, 573, 721 N.Y.S.2d
857, 744 N.E.2d 685; [***5] Cammilleri v S & W Realty
Assocs., 243 A.D.2d 530, 663 N.Y.S.2d 222). Contrary to
its contention, however, the new legislation provides for
a common-law cause of action against negligent
landowners in situations such as that presented here (see
Johnson v Fuller Co., 266 A.D.2d 158, 699 N.Y.S.2d
348). As with the plaintiff's General Municipal Law §
205-a claim, the expert affidavit submitted by the
plaintiff raised triable issues of fact as to whether the
Housing [*485] Authority's alleged negligence in re-
sponding to or investigating tenant complaints of an odor
of gas and in failing to notify the fire department was a
substantial factor in causing the plaintiff's injuries (see
Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 434
N.Y.S.2d 166, 414 N.E.2d 666).
Ritter, J.P., Altman, S. Miller and Townes, JJ., con-
cur.

27 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

GLADYS M. HAND, PLAINTIFF-RESPONDENT, v MICHAEL GILBANK, DE-

FENDANT-APPELLANT.

CA 02-01477

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DE-

PARTMENT

300 A.D.2d 1067; 752 N.Y.S.2d 501; 2002 N.Y. App. Div. LEXIS 12923

December 30, 2002, Entered

CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff tenant com-
menced an action to recover damages for injuries she
sustained as she attempted to walk up the driveway. De-
fendant landlord moved for summary judgment. The Su-
preme Court, Onondaga County, New York, granted the
landlord's motion in part, dismissing the claim that the
tenant's injuries resulted from the landlord's alleged neg-
ligence in failing to remove an accumulation of snow and
ice on the driveway. The landlord appealed.
OVERVIEW: On appeal, the landlord contended that

the trial court improperly denied his motion on the claim
that the tenant's injuries resulted from his negligent
failure to maintain or repair the driveway surface or to
provide a safe means of ingress and egress. The instant
court found that the landlord failed to sustain his burden
of demonstrating his entitlement to judgment as a matter
of law on the issues of whether the premises were negli-
gently maintained, whether he had actual or constructive
notice of that alleged defect or hazard, and whether the
alleged defect or hazard caused or contributed to the ten-
ant's injuries. The landlord's alleged violation of the
State Uniform Fire Prevention and Building Code, N.Y.
Comp. Codes R. & Regs. tit. 9, pt. 600 et seq., could
have been considered as some evidence of negligence.
However, the trial court erred in failing to grant the land-
lord's motion on the claim of negligence premised upon
his alleged discrimination against the tenant, a handi-
capped person, in violation of the Fair Housing Act, 42
U.S.C.S. § 3601 et seq., because the Act was not intended
to create a standard of care in negligence litigation.
OUTCOME: The order was modified on the law by
granting the landlord's motion to the extent that it sought
summary judgment dismissing the claim of negligence
premised upon his alleged discrimination against the ten-
ant in violation of the Fair Housing Act. The order was
affirmed as modified.
CORE TERMS: summary judgment, Fair Housing Act,
driveway, claim of negligence, handicapped, modified,
premised, dwelling, hazard
LexisNexis(R) Headnotes
Civil Rights Law > Contractual Relations & Housing >
Fair Housing Rights > Fair Housing Act
Civil Rights Law > Contractual Relations & Housing >
Fair Housing Rights > Fair Housing Amendments Act
& Housing for Retirees
Public Health & Welfare Law > Housing & Public
Buildings > Fair Housing
[HN1] The Fair Housing Act, 42 U.S.C.S. § 3601 et seq.,
is not intended to create a standard of care in negligence
litigation. Thus, an alleged violation of the Fair Housing
Act, even if proved, would not constitute negligence.
COUNSEL: [***1] LAW OFFICES OF MICHAEL G.
DONNELLY, NORTH SYRACUSE (MICHAEL G.
DONNELLY OF COUNSEL), FOR DEFENDANT-AP-
PELLANT.
PRIMO, PRIMO & KIRWAN, LLP, LIVERPOOL
(DAVID M. PRIMO OF COUNSEL), FOR PLAINTIFF-
Page 72
RESPONDENT.
JUDGES: PRESENT: GREEN, J.P., WISNER, SCUD-
DER, KEHOE, AND GORSKI, JJ.
OPINION
[*1067] [**502] MEMORANDUM AND OR-
DER
Appeal from an order of Supreme Court, Onondaga
County (Carni, J.), entered April 9, 2002, which denied
in part defendant's motion for summary judgment dis-
missing the complaint.
It is hereby ORDERED that the order so appealed
from be and the same hereby is unanimously modified on
the law by granting the motion of defendant to the extent
that it sought summary judgment dismissing the claim of
negligence premised upon his alleged discrimination
against plaintiff, a handicapped person, in violation of
the Fair Housing Act (42 USC § 3601 et seq.) and as
modified the order is affirmed without costs.
Memorandum: Plaintiff, a tenant in a two-family
dwelling owned by defendant, commenced this action to
recover damages for injuries she sustained as she at-
tempted [***2] to walk up the driveway leading to the
rear entrance of the dwelling. Defendant moved for sum-
mary judgment dismissing the complaint. Supreme Court
granted defendant's motion in part, dismissing the claim
that plaintiff's injuries resulted from defendant's alleged
negligence in failing to remove an accumulation of snow
and ice on the driveway. Contrary to the contention of
defendant, [*1068] the court properly denied his motion
to the extent that it sought summary judgment dismissing
the claim that plaintiff's injuries resulted from his negli-
gent failure to maintain or repair the driveway surface or
to provide a safe means of ingress and egress. "Defend-
ant failed to sustain [his] burden of demonstrating [his]
entitlement to judgment as a matter of law on the issues
whether the premises were negligently maintained in a
defective or hazardous condition, whether [he] had [actu-
al or] constructive notice of that alleged defect or hazard,
and whether the alleged defect or hazard caused or con-
tributed to plaintiff's injuries" (Gonzalez v Padin, ___
A.D.2d ___, ___, 749 N.Y.S.2d 765 [Nov. 15, 2002]).
Contrary to the further contention of defendant, his al-
leged violation of the State Uniform Fire [***3] Preven-
tion and Building Code ( 9 NYCRR part 600 et seq.)
may be considered as some evidence of negligence (see
Hill v Cartier, 258 A.D.2d 699, 701, 685 N.Y.S.2d 336;
see generally Elliott v City of New York, 95 N.Y.2d 730,
734, 724 N.Y.S.2d 397, 747 N.E.2d 760).
We agree with defendant, however, that the court
erred in failing to grant his motion to the extent that it
 Page 73

sought summary judgment dismissing the claim of negli-
gence premised upon his alleged discrimination against
plaintiff, a handicapped person, in violation of the Fair
Housing Act (42 USC § 3601 et seq.). Even assuming,
arguendo, that defendant violated the Fair Housing Act
by refusing to permit the installation of a ramp, railings
or other devices on the property (see § 3604 [f] [3] [A]),
we conclude that [HN1] the Act was not intended to cre-
ate "a standard of care in negligence litigation" ( Dance v
Town of Southampton, 95 A.D.2d 442, 446, 467 N.Y.S.2d
203). Thus, the alleged violation of the Fair Housing Act,
even if proved, would not constitute negligence (see id.
at 445-446). [***4] We therefore modify the order ac-
cordingly.
Entered: December 30, 2002

28 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Bernadine Putter, Plaintiff, v. Isaac Sued, Appellant, and London Boy Sportswear
Ltd. et al., Respondents.

456

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

292 A.D.2d 222; 739 N.Y.S.2d 56; 2002 N.Y. App. Div. LEXIS 2426

March 12, 2002, Decided

March 12, 2002, Entered

CASE SUMMARY:
PROCEDURAL POSTURE: The Supreme Court,
Bronx County (New York), in an action for personal in-
juries sustained when plaintiff injured party fell on a
stairway in defendant tenants' store, denied defendant
landlord's motion for summary judgment on its cross
claim against the tenants for contractual indemnification.
The landlord appealed the order.
OVERVIEW: The appellate court held that even assum-
ing that the subject indemnification clause did not viol-
ate N.Y. Gen. Oblig. Law § 5-321, the landlord's motion
was properly denied on the ground that the indemnifica-
tion clause, viewed in the context of the entire lease, did
not evince an unmistakable intent to obligate the tenants
to indemnify the landlord for injuries to third persons
caused by the landlord's own negligence with respect to
its non-delegable duty under New York City, N.Y., Ad-
min. Code §§ 27-128, -375 to provide a handrail for the
stairway on which the injured party fell. An ambiguity
in this regard was raised by lease provisions which, al-
though obligating the tenant to make both structural and
non-structural repairs, gave the landlord a right of reentry
to perform repairs, and which required the landlord's
consent before any structural alterations were done. The
appellate court was not persuaded otherwise by the fact
that the indemnity clause, insofar as it applied to any and
all liabilities by reason of any injury to any person
arising from or in connection with the occupancy or use
of the demised premises, did not expressly refer to either
party's negligence.
OUTCOME: The order was affirmed, with costs.
CORE TERMS: landlord's, tenant, indemnification,
stairway, repairs, lease
COUNSEL: [**1] Max W. Gershweir, for Defendant-
Appellant.
Marie R. Hodukavich, for Defendants-Respondents.
 Page 74

negligence with respect to its nondelegable duty under

JUDGES: Concur--Saxe, J.P., Rosenberger, Ellerin, Wal-
lach, Marlow, JJ.
OPINION
[*56] Order, Supreme Court, Bronx County
(George Friedman, J.), entered August 1, [*57] 2001,
which, in an action for personal injuries sustained when
plaintiff fell on a stairway in defendant-respondents ten-
ants' store, denied defendant-appellant landlord's motion
for summary judgment on its cross claim against the ten-
ants for contractual indemnification, unanimously af-
firmed, with costs.
Even assuming that the subject indemnification
clause does not violate General Obligations Law § 5-
321, its motion was properly denied on the ground that
the subject indemnification clause, viewed in the context
of the entire lease, does not evince an "unmistakable in-
tent" to obligate tenants to indemnify the landlord for
injuries to third persons caused by the landlord's own
Building Code (Administrative Code of City of NY) §§
27-128 and 27-375 to provide a handrail for the stairway
on which plaintiff fell (see, Hogeland v Sibley, Lindsay
& Curr Co., 42 NY2d 153, 158; [**2] Ruhland v
Cowper Co., 72 AD2d 907, affd 52 NY2d 756). An ambi-
guity in this regard is raised by lease provisions which,
although obligating the tenant to make both structural
and nonstructural repairs, give the landlord a right of
reentry to perform repairs required by the Building Code,
and which require the landlord's consent before any
structural alterations are done. We are not persuaded
otherwise by the fact that the indemnity clause, insofar as
it applies to any and all liabilities by reason of any in-
jury to any person "arising from or in connection with
the occupancy or use of the demised premises," does not
expressly refer to either party's negligence. We have
considered the landlord's other arguments and find them
unavailing.
Concur--Saxe, J.P., Rosenberger, Ellerin, Wallach
and Marlow, JJ.

29 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Anthony Scotti et al., Appellants, v. Federation Development Corporation et al., Re-

spondents.

2000-06271, 2001-01252

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

289 A.D.2d 322; 734 N.Y.S.2d 573; 2001 N.Y. App. Div. LEXIS 11936

October 30, 2001, Argued

December 10, 2001, Decided

PRIOR HISTORY: [***1] In an action to recover
damages for personal injuries, etc., the plaintiffs appeal,
as limited by their brief, from so much of (1) an order of
the Supreme Court, Richmond County (Sangiorgio, J.),
dated June 12, 2000, as granted those branches of the de-
fendants' separate motions which were for summary
judgment dismissing the complaint insofar as asserted
against them and denied their cross motion for summary
judgment on the issue of liability pursuant to Labor Law
§ 240 (1), and (2) an order of the same court, dated Janu-
ary 5, 2001, as, upon reargument, adhered to so much of
the original determination as denied that branch of their
cross motion which was for summary judgment on the is-
sue of liability pursuant to Labor Law § 240 (1) against
the defendant Narkis Funding, L. L. P.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff injured worker

and his wife appealed a Supreme Court, Richmond
County (New York) order granting summary judgment
dismissing their claims against defendants general con-
tractor and landowner based on N.Y. Lab. Law §§ 200,
240(1), 241(6) and common law negligence. The
landowner appealed a summary judgment dismissing its
indemnification cross-claim.
OVERVIEW: A worker was injured in a fall from a
ladder while working for a tenant of the landowner. The
general contractor had been engaged by the landowner to
coordinate the overall project. The reviewing court held
that the worker was entitled by the very nature of his ac-
cident to recover from the contractor, and possibly the
landowner, under the strict liability provisions of N.Y.
Lab. Law § 240(1), and that the worker also showed suf-
ficient violations of safety regulations for these same
parties to face possible liability under N.Y. Lab. Law §
241(6). Since the contractor actually controlled the work
site, the worker could sue it for negligence, and the
landowner, which had no control over the work activity,
was entitled to indemnification by the contractor.
OUTCOME: The court reversed the summary judg-
ments for the contractor and the landowner as against the
worker, and reinstated the causes of action, but granted
summary judgment on the worker's strict liability claim.
It also reversed the order denying the landowner's indem-
nification cross-claim and entered summary judgment for
the landowner.
CORE TERMS: summary judgment, causes of action,
common-law, substituting, deleting, issue of liability,
modified, ladder, installation, recover damages, indemni-
fication, contractual, reinstated, performing, hired
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General
Premises Liability > Defenses > Independent Contract-
ors
Torts > Strict Liability > Abnormally Dangerous Activ-
ities > General Overview
Torts > Vicarious Liability > Independent Contractors
[HN1] An injured construction worker is entitled to sum-
mary judgment against a landowner and general contract-
or under N.Y. Lab. Law § 240(1) where he sustains injur-
ies when the ladder upon which he is working falls to the
side.
Torts > Procedure > Multiple Defendants > Indemnity
> Contractual Indemnity
Page 75
Torts > Procedure > Multiple Defendants > Indemnity
> Noncontractual Indemnity
Torts > Vicarious Liability > Independent Contractors
[HN2] An action by an injured worker against a general
contractor based on N.Y. Lab. Law § 200 and common
law negligence should not be summarily dismissed
where issues of fact exist as to whether the contractor ex-
ercised supervision and control over the work activity
that caused the worker's injury or had notice of he haz-
ardous condition that caused the accident.
COUNSEL: Brecher, Fishman, Pasternack, Popish,
Heller, Rubin & Reiff, P.C., New York, N.Y. (Jessica J.
Hanlon, Robert F. Garnsey, and Frank Gulino of
counsel), for appellants.
Caulfield Law Office (Carol R. Finocchio and Marie R.
Hodukavich, New York, N.Y., of counsel), for respond-
ent Narkis Funding, LLP.
JUDGES: DAVID S. RITTER, J.P., SANDRA J.
FEUERSTEIN, SANDRA [***2] L. TOWNES, A.
GAIL PRUDENTI, JJ. RITTER, J.P., FEUERSTEIN,
TOWNES and PRUDENTI, JJ., concur.
OPINION
[*322] [**574] Ordered that the appeal from so
much of the order dated June 12, 2000, as denied that
branch of the plaintiffs' cross motion which was for sum-
mary judgment on the issue of liability pursuant to Labor
Law § 240 (1) against the defendant Narkis Funding, L.
L. P., is dismissed, as that part of the order was super-
seded by the order dated January 5, 2001, made upon
reargument; and it is further,
Ordered that the order dated June 12, 2000, is modi-
fied, on the law, by (1) deleting the provision thereof
granting those branches of the motion of the defendant
Narkis Funding, L. L. P., which were for summary judg-
ment dismissing the causes of action pursuant to Labor
Law § 240 (1) and § 241 (6) insofar as asserted against it,
and substituting therefor a provision denying those
branches of that motion, (2) deleting the provision there-
of granting those branches of the motion of the defendant
Federation Development Corporation which were for
summary judgment dismissing the causes of action pur-
suant to Labor Law §§ 200 [***3] , 240 (1), and § 241
(6), and to recover damages for common-law negligence
insofar as asserted against it, and substituting therefor a
provision denying those branches of that motion, (3) de-
leting the provision thereof denying that branch of the
plaintiffs' cross motion which was for summary judg-
ment on the issue of liability pursuant to Labor Law §
240 (1) against the defendant Federation Development
Corporation and substituting therefor a provision grant-
 Page 76

ing that branch of the cross motion, and (4) deleting the
provision thereof denying that branch of the motion of
the defendant Narkis Funding, L. L. P., which was for
summary judgment on its cross claim for common-law
and contractual indemnification against the defendant
Federation Development Corporation [*323] and, upon
searching the record, substituting therefor a provision
granting that branch of the motion; as so modified, the
order dated June 12, 2000, is affirmed insofar as re-
viewed, the causes of action pursuant to Labor Law §
240 (1) and § 241 (6) are reinstated, and the causes of ac-
tion pursuant to Labor Law § 200 and to recover dam-
ages for common-law [***4] negligence, are reinstated
insofar as asserted against the defendant Federation De-
velopment Corporation; and it is further,
Ordered that the order dated January 5, 2001, is re-
versed insofar as appealed from, that branch of the
plaintiffs' cross [**575] motion which was for summary
judgment on the issue of liability pursuant to Labor Law
§ 240 (1) against Narkis Funding, L. L. P., is granted, and
the order dated June 12, 2000, is modified accordingly;
and it is further,
Ordered that the plaintiffs are awarded one bill of
costs.
The defendant Narkis Funding, L. L. P. (hereinafter
Narkis) hired the defendant Federation Development
Corporation (hereinafter Federation) as the general con-
tractor to renovate premises owned by Narkis in prepara-
tion for the tenancy of the New York City Department of
Consumer Affairs (hereinafter DCA). The injured
plaintiff was hired by the DCA to install a telecommunic-
ations system. The contract between Narkis and Federa-
tion acknowledged that DCA would hire workers to per-
form this installation and required Federation to coordin-
ate and cooperate with those workers. While the injured
plaintiff was performing the installation, [***5] the lad-
der upon which he was working "kicked out" and fell to
the side, causing him to fall. According to the plaintiffs,
the accident resulted either from uneven flooring due to
the removal and installation of carpeting and tiling, or
debris and materials left by electricians at the base of the
ladder.
[HN1] The plaintiffs are entitled to summary judg-
ment against the defendants under Labor Law § 240 (1)
because the injured plaintiff, while performing an altera-
tion, sustained injuries when the ladder upon which he
was working fell to the side (see, Joblon v Solow, 91
NY2d 457, 465; Ross v Curtis-Palmer Hydro-Elec. Co.,
81 NY2d 494, 501-502). Additionally, those branches of
the defendants' motions which were for summary judg-
ment dismissing the plaintiffs' cause of action pursuant to
Labor Law § 241 (6) should not have been granted be-
cause the Industrial Code supports this cause of action
(see, 12 NYCRR 23-1.7 [e] [2]; Rizzuto v Wenger Contr.
Co., 91 NY2d 343, 350-351; [***6] Rosemin v Oved,
254 AD2d 343, 344). Those branches of Federation's mo-
tion which were for summary judgment dismissing the
plaintiffs' causes of action pursuant to Labor Law § 200
[*324] and to recover damages for common-law negli-
gence insofar as asserted against it should not have been
granted. Issues of fact remain regarding [HN2] whether
Federation exercised supervision and control over the
work activity which caused the injured plaintiff's fall, or
had notice of the hazardous condition which caused the
accident (see, Rizzuto v Wenger Contr. Co., supra, at
353; Sprague v Peckham Materials Corp., 240 AD2d
392, 394).
Narkis is entitled to summary judgment regarding its
cross claim against Federation for common-law and con-
tractual indemnification. Narkis made out a prima facie
case for summary judgment. In opposition, Federation
did not raise a triable issue of fact (see, Pope v Supreme-
K.R.W. Constr. Corp., 261 AD2d 523, 524-525).
Ritter, J. P., Feuerstein, Townes and Prudenti, JJ.,
concur.

30 of 55 DOCUMENTS

Caution
As of: Sep 10, 2008

Kesha Lane, Respondent, v. Fisher Park Lane Co. et al., Appellants.

2208

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-


MENT
276 A.D.2d 136; 718 N.Y.S.2d 276; 2000 N.Y. App. Div. LEXIS 12462
November 30, 2000, Decided
November 30, 2000, Entered
PRIOR HISTORY: [***1] Appeal from an order of
the Supreme Court (Emily Goodman, J.), entered May
16, 2000 in New York County which, inter alia, denied
defendants' motions for summary judgment dismissing
the complaint and all cross claims against them.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants bank and
landowner challenged the judgment of the New York
County Supreme Court denying their motions for sum-
mary judgment and granting plaintiff temporary employ-
ee's cross-motion to strike defendants' affirmative de-
fenses as a sanction for spoliation of evidence in
plaintiff's personal injury action.
OVERVIEW: Plaintiff sued defendants seeking dam-
ages for injury she sustained while working as a tempor-
ary employee of defendant bank in a building managed
by defendant landowner. The trial court denied defend-
ants' motions for summary judgment and granted
plaintiff's motion to strike defendants' affirmative de-
fenses as a remedy for spoliation of the cabinet that in-
jured plaintiff. On appeal, the court reversed, holding
that the trial court erred by addressing the spoliation is-
sue, rather than defendants' entitlement to dismissal of
the complaint on a point of law, as the threshold ques-
tion. The trial court's remedy for spoliation bore no rela-
tionship to the loss of the evidence. The court held that
defendant bank was entitled to summary judgment based
upon its affirmative defense of workers' compensation
because plaintiff's special employment status was estab-
lished as a matter of law. Defendant landowner was also
entitled to summary judgment because it was not re-
sponsible for the condition of the cabinet.
OUTCOME: Judgment reversed because the trial court
erred by treating plaintiff's spoliation claim as the
threshold issue before determining whether defendants
were entitled to judgment as a matter of law, and because
defendants were entitled to summary judgment based
upon their affirmative defenses.
CORE TERMS: repair, cabinet, summary judgment,
landlord, lease, door, matter of law, spoliation of evid-
ence, workers' compensation, tenant, temporary, affirm-
Page 77
ative defense, entitlement, reenter, employment status,
bosses, special employee, contractual, spoliation, as-
signed, destroyed, broken, personal injury action, build-
ing owners, cross claims, Compensation Law, threshold
question, design defect, assigned tasks, sole remedy
LexisNexis(R) Headnotes
Civil Procedure > Discovery > Misconduct
Civil Procedure > Trials > Judgment as Matter of Law
> General Overview
[HN1] While severe sanctions may be imposed upon a
party who destroys key evidence before an opposing
party has an opportunity to examine that evidence, the
entitlement to judgment as a matter of law, for a reason
completely unrelated to the evidence destroyed, cannot
be impaired. In deciding whether to impose sanctions,
courts will look to the extent that the spoliation of evid-
ence may prejudice a party and whether a particular
sanction will be necessary as a matter of elementary fair-
ness.
Civil Procedure > Discovery > Misconduct
Civil Procedure > Trials > Judgment as Matter of Law
> General Overview
Evidence > Relevance > Spoliation
[HN2] It can scarcely be disputed that where a defendant
is entitled to dismissal as a matter of law on the basis of a
defense having nothing to do with the evidence allegedly
destroyed, that evidence cannot be considered critical to
the plaintiff's case. Nor, under such circumstances, is the
destruction of that evidence prejudicial to plaintiff. Ac-
cordingly, it is the question of defendants' entitlement to
dismissal of the action, rather than plaintiff's entitlement
to sanctions for the spoliation of evidence, which is the
threshold issue.
Workers' Compensation & SSDI > Compensability >
Course of Employment > General Overview
Workers' Compensation & SSDI > Coverage > Employ-
ment Relationships > General Overview
[HN3] The sole remedy of an employee against his em-
ployer for injuries in the course of employment is bene-

fits under the Workers' Compensation Law. N.Y. Workers'
Comp. Law §§11, 29[6].
Workers' Compensation & SSDI > Coverage > Employ-
ment Relationships > Borrowed Employees
Workers' Compensation & SSDI > Coverage > Employ-
ment Relationships > Employers
[HN4] A general employee of one employer may also be
in the special employ of another, notwithstanding the
general employer's responsibility for payment of wages
and for maintaining workers' compensation and other
employee benefits. A special employee is described as
one who is transferred for a limited time of whatever
duration to the service of another. General employment is
presumed to continue, but this presumption is overcome
upon clear demonstration of surrender of control by the
general employer and assumption of control by the spe-
cial employer. While whether a person is considered a
special employee is generally a question of fact, a de-
termination of special employment status may, where the
undisputed facts compel such a conclusion, be made as a
matter of law.
Workers' Compensation & SSDI > Coverage > Employ-
ment Relationships > General Overview
[HN5] In determining special employment status, a sig-
nificant and weighty factor focuses on who controls and
directs the manner, details and ultimate result of the em-
ployee's work.
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Power to Reenter & Terminate
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > General
Overview
Torts > Products Liability > Design Defects
[HN6] A landlord is generally not liable for negligence
with respect to the condition of property after the transfer
of possession and control to a tenant unless the landlord
is either contractually obligated to make repairs and/or
maintain the premises or has a contractual right to
reenter, inspect and make needed repairs at the tenant's
expense and liability is based on a significant structural
or design defect that is contrary to a specific statutory
safety provision.
HEADNOTES
Disclosure - Penalty for Failure to Disclose - Spoli-
ation of Evidence - Summary Judgment
1. In a personal injury action based upon the injur-
ies sustained by plaintiff when the door of a supply cab-
Page 78
inet fell on her while she was working as a temporary
employee in the offices of defendant bank, the trial court
erred in imposing sanctions against all defendants for
spoliation of evidence for having destroyed the cabinet
one year after the commencement of the action without
first considering whether, apart from the disposed-of
evidence, defendants were entitled to summary judgment
and a dismissal of the complaint as a matter of law. It is
the question of defendants' entitlement to dismissal of the
action, rather than plaintiff's entitlement to sanctions for
the spoliation of evidence, which is the threshold issue.
The undisputed facts herein demonstrate that summary
judgment should have been granted to defendant bank on
its affirmative defense of workers' compensation since
plaintiff's special employment status has been established
as a matter of law. Similarly, the building owners are also
entitled to summary judgment dismissing the complaint,
regardless of the spoliation issue, since the lease with de-
fendant bank imposed no obligation on these defendants
to repair the cabinet in question. Furthermore, while the
landlord retained the right to reenter the premises to
make certain repairs, there is no claim that the defect, a
broken cabinet door, involved building structure or
design or that any statutory safety provision was viol-
ated.
Workers' Compensation - Existence of Employer-
Employee Relationship - Special Employment Status of
Temporary Employee
2. In a personal injury action based upon the injur-
ies sustained by plaintiff when the door of a supply cab-
inet fell on her while she was working as a temporary
employee in the offices of defendant bank, defendant is
entitled to summary judgment dismissing the complaint
on its affirmative defense of workers' compensation,
since plaintiff's special employment status has been es-
tablished as a matter of law. Although the employment
agency which assigned plaintiff to work at defendant's
offices issued plaintiff's paychecks, the agency played no
role in supervising or directing plaintiff as she carried out
her work assignments. In the absence of a showing of
direction or control, the mere fact that plaintiff regularly
reported to the agency regarding the scope of her as-
signed tasks does not alter her status as a special employ-
ee whose sole remedy against her employer for injuries
in the course of employment is benefits under the Work-
ers' Compensation Law.
Negligence - Maintenance of Premises - Liability of
Owner with No Contractual Obligation to Make Repairs
to Leased Premises
3. In a personal injury action based upon the injur-
ies sustained by plaintiff when the door of a supply cab-
inet fell on her while she was working as a temporary
employee in the offices of defendant bank, the building

owners are entitled to summary judgment dismissing the
complaint. A landlord is generally not liable for negli-
gence with respect to the condition of property after the
transfer of possession and control to a tenant unless the
landlord is either contractually obligated to make repairs
and/or maintain the premises or has a contractual right to
reenter, inspect and make needed repairs at the tenant's
expense, and liability is based on a significant structural
or design defect that is contrary to a specific statutory
safety provision. Here, the lease with defendant bank
imposed no obligation on the building owners to repair
the cabinet in question. Furthermore, while the landlord
retained the right to reenter the premises to make certain
repairs, there is no claim that the defect, a broken cabinet
door, involved building structure or design or that any
statutory safety provision was violated.
COUNSEL: Evan David Lieberman of counsel, Garden
City (Brand & Brand, attorneys), for respondent.
Carol R. Finocchio and Lawrence B. Goodman of coun-
sel, New York City (Caulfield Law Office, attorneys), for
Fisher Park Lane Co. and another, appellants.
Michelle S. Russo of counsel, Baldwin (Gregory E.
Brower on the brief; Chesney & Murphy, L. L. P., attor-
neys), for Union Bank of Switzerland, appellant.
JUDGES: Rosenberger, Williams, Ellerin and Buckley,
JJ., concur.
OPINION BY: SULLIVAN
OPINION
[*137] [**277] Sullivan, P. J.
At issue on this appeal is whether the trial court
erred in [*138] imposing sanctions against defendants
for spoliation of evidence before considering whether,
quite apart from the disposed-of evidence, defendants
were entitled to summary judgment and a dismissal of
the complaint as a matter of law.
Plaintiff was employed as a secretary/word pro-
cessor by Madamoiselle [sic] [***2] Off-Fifth Tempor-
aries, Inc., a temporary employment agency. While
working as a temporary employee in the offices of de-
fendant Union Bank of Switzerland (UBS), in premises
at 299 Park Avenue in Manhattan, owned and managed,
respectively, by defendants Fisher Park Lane Co. and
Fisher Brothers Management Co., plaintiff was allegedly
injured when the door of a supply cabinet fell on her.
UBS and the Fisher defendants separately moved for
summary judgment dismissing the complaint and cross
claims, UBS on the ground that plaintiff was its "special
Page 79
employee" and that workers' compensation is therefore
her exclusive remedy, * and the [**278] Fisher defend-
ants contending that, as the out-of-possession landlord,
Fisher did not have an obligation to repair or maintain
the cabinet. In addition, all the defendants asserted lack
of notice. Plaintiff cross-moved for sanctions against de-
fendants based on their spoliation of evidence, i.e., the
cabinet in question, including, inter alia, striking their
answers and, more specifically, UBS's workers' com-
pensation defense and the Fisher defendants' comparative
negligence defense. Viewing the spoliation of evidence
issue as the threshold question, [***3] the court granted
the cross motion and struck defendants' affirmative de-
fenses, concluding that plaintiff's ability to establish a
prima facie case of negligence had been impaired by the
destruction, at the behest of UBS with the acquiescence
of the Fisher defendants, of the cabinet one year after the
litigation was commenced. Since, in our view, the com-
plaint and cross claims should have been dismissed as
against all defendants, we reverse. In any event, the rem-
edy for the spoliation, i.e., the striking of the affirmative
defenses noted, bore no relationship to the loss of the
evidence.
* After the accident, plaintiff received workers'
compensation benefits through Madamoiselle's
workers' compensation carrier.
The trial court's fatal error was to address the spoli-
ation issue, rather than defendants' entitlement to dis-
missal of the complaint on a point of law, as the
threshold question. [HN1] While severe sanctions [***4]
may be imposed upon a party who destroys key evidence
before an opposing party has an opportunity to examine
that evidence (see, Squitieri v City of New York, 248
AD2d 201; Kirkland v New York City Hous. Auth., 236
AD2d 170, 173), [*139] the entitlement to judgment as
a matter of law, for a reason completely unrelated to the
evidence destroyed, cannot be impaired. "In deciding
whether to impose sanctions ... 'courts will look to the
extent that the spoliation of evidence may prejudice a
party and whether a [particular sanction] will be neces-
sary as " 'a matter of elementary fairness.' " ' " (Hartford
Fire Ins. Co. v Regenerative Bldg. Constr., 271 AD2d
862, 863, quoting Puccia v Farley, 261 AD2d 83, 85,
quoting Kirkland v New York City Hous. Auth, supra, at
175.) [HN2] It can scarcely be disputed that where a de-
fendant is entitled to dismissal as a matter of law on the
basis of a defense having nothing to do with the evidence
allegedly destroyed, that evidence cannot be considered
critical to the plaintiff's [***5] case. Nor, under such
circumstances, is the destruction of that evidence preju-
dicial to plaintiff. Accordingly, it is the question of de-
fendants' entitlement to dismissal of the action, rather
than plaintiff's entitlement to sanctions for the spoliation

of evidence, which is the threshold issue.
[HN3] The sole remedy of an employee against his
employer for injuries in the course of employment is be-
nefits under the Workers' Compensation Law. (See,
Gonzales v Armac Indus., 81 NY2d 1, 8; Billy v Consol-
idated Mach. Tool Corp., 51 NY2d 152, 156; see also,
Workers' Compensation Law §§ 11, 29 [6].) [HN4] "[A]
general employee of one employer may also be in the
special employ of another, notwithstanding the general
employer's responsibility for payment of wages and for
maintaining workers' compensation and other employee
benefits .... A special employee is described as one who
is transferred for a limited time of whatever duration to
the service [***6] of another .... General employment is
presumed to continue, but this presumption is overcome
upon clear demonstration of surrender of control by the
general employer and assumption of control by the spe-
cial employer [citations omitted]." (Thompson v Grum-
man Aerospace Corp., 78 NY2d 553, 557.) While wheth-
er a person is considered a special employee is generally
a question of fact, a determination of special employment
status [**279] may, where the undisputed facts compel
such a conclusion, be made as a matter of law. (Id., at
557-558.)
Plaintiff began her employment with Madamoiselle
in March 1996 and was assigned to work at UBS's of-
fices in approximately April 1996. For about one month
before the accident, she was assigned, on a daily, full-
time basis, to the same department, where she worked
exclusively for two individuals, [*140] whom she con-
sidered her "bosses." Her desk was situated outside her
bosses' offices. Plaintiff testified that her UBS super-
visor signed her time sheet, but that she was paid by
Madamoiselle. On the day of the accident, after "check-
ing with [her] bosses" to see whether there was anything
that required [***7] her immediate attention, plaintiff
went to the copy room--where the accident occurred--to
obtain certain materials she needed to finish a proposal
she was working on for one of her bosses. According to
plaintiff, when she opened an overhead cabinet to get pa-
per, the upper hinge detached and the door swung down
and struck her. She continued working on the day of the
accident, but advised her UBS bosses that she would not
be in for the next two days, a Thursday and Friday. The
following week, plaintiff returned to work and worked
for the full week, at the end of which she was advised, by
both Madamoiselle and UBS, not to return to the bank.
[HN5] In determining special employment status, a
"significant and weighty" (id., at 558) factor "focuses on
who controls and directs the manner, details and ultimate
result of the employee's work". (Id.) Here, plaintiff's
work was controlled and directed by UBS. (See, Zylinski
v Garito Contr., 268 AD2d 427.) While Madamoiselle is-
Page 80
sued plaintiff's paychecks, there is no showing that it
played any role in supervising or [***8] directing
plaintiff as she carried out her assignments for the bank.
(See, Hanchett v Graphic Techniques, 243 AD2d 942,
944.) In the absence of a showing of direction or control,
the mere fact that plaintiff "regularly reported to
[Madamoiselle] regarding the scope of [her] assigned
tasks" is of no moment--especially since the tasks were
"assigned" by UBS. In addition, contrary to plaintiff's
claim that Madamoiselle rather than UBS ultimately
ended plaintiff's assignment at the latter, her deposition
testimony establishes that both companies informed her
that the UBS assignment had ended.
To demonstrate Madamoiselle's control over her
work, plaintiff relies on the statement in her affidavit that
"certain tasks that [she] was requested by [UBS] to per-
form were not included in the arrangement between
Madamoiselle and [UBS and that her supervisor at
Madamoiselle] had to extend advance approval for these
additional tasks, and account for price increases accord-
ingly." This conclusory affidavit, however, fails to state
that plaintiff has personal knowledge of these facts, i.e.,
the contractual relationship between Madamoiselle and
UBS. Accordingly, it is of [***9] no probative value in
opposing the motion for summary judgment. (See, Mar-
inelli v Shifrin, [*141] 260 AD2d 227; see also, Capelin
Assocs. v Globe Mfg. Corp., 34 NY2d 338, 342.) The
claim finds no other support in the record. Moreover,
and in any event, there is no showing that plaintiff or
anyone else ever requested advance approval from
Madamoiselle for the tasks she was asked to perform
while working on this particular assignment for UBS.
Accordingly, since we are persuaded that plaintiff's spe-
cial employment status has been established as a matter
of law, summary judgment to UBS should have been
granted on its affirmative defense of workers' compensa-
tion.
The Fisher defendants are also entitled to summary
judgment dismissing the complaint. "[HN6] A landlord
is generally not liable for negligence with respect to
[**280] the condition of property after the transfer of
possession and control to a tenant unless the landlord is
either contractually obligated to make repairs and/or
maintain the premises or has a contractual right to
reenter, inspect [***10] and make needed repairs at the
tenant's expense and liability is based on a significant
structural or design defect that is contrary to a specific
statutory safety provision." (Johnson v Urena Serv. Ctr.,
227 AD2d 325, 326, lv denied 88 NY2d 814; see also,
Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d
559.)
The lease between Fisher and UBS imposes no ob-
ligation on the former to repair the cabinet in question.
 Page 81

Pursuant to article 45 of the lease, the tenant accepted the
part of the premises where the accident occurred in the
condition and state of repair existing as of the date on
which the tenant took occupancy. Article 9 of the lease
requires UBS to make "such repairs to the demised
premises and the fixtures and appurtenances therein as
are necessitated by the act, omission, occupancy or negli-
gence of Tenant." (§ 9.01.) While article 9 also permits
Fisher to make such repairs, at UBS's expense, if UBS
fails to make the repairs, the lease does not require Fisher
to do so.
In addition, under article 16 of the lease, Fisher re-
served the right to reenter the premises "for the making
of such repairs or alterations as Landlord [***11] may
deem necessary for the Building or which Landlord shall
be required to or shall have the right to make by the pro-
visions of this Lease or any other lease in the Building."
(§ 16.01.) While Fisher retained the right to reenter to
make certain repairs, there is no claim here that the de-
fect--a broken cabinet door--involved building structure
or design or that any statutory safety provision was viol-
ated. Accordingly, plaintiff's reliance on Administrative
Code of the City of New York §§ 27-127 and 27-128,
which impose a duty [*142] on the owner of a building
to safely maintain the building and its facilities (see,
Guzman v Haven Plaza Hous. Dev. Fund Co., supra, 69
NY2d, at 566; see also, Beck v Woodward Affiliates, 226
AD2d 328, 330), is misplaced, since the cabinet door
which allegedly injured plaintiff is not structural in
nature so as to impose liability under the Administrative
Code. (See, Quinones v 27 Third City King Rest., 198
AD2d 23.)
Accordingly, the order of Supreme Court, New York
County (Emily Goodman, J.), entered May 16, 2000,
which denied defendants' motions for summary judgment
dismissing the complaint [***12] and all cross claims
against them and granted plaintiff's cross motion for
sanctions based on spoliation of evidence to the extent of
dismissing defendants' affirmative defenses, should be
reversed, on the law, without costs or disbursements, the
motions granted, the complaint dismissed and the cross
motion denied. The Clerk is directed to enter judgment
in favor of defendants dismissing the complaint.
Rosenberger, Williams, Ellerin and Buckley, JJ.,
concur.
Order, Supreme Court, New York County, entered
May 16, 2000, reversed, on the law, without costs or dis-
bursements, defendants' motions for summary judgment
dismissing the complaint and all cross claims against
them granted, the complaint dismissed and plaintiff's
cross motion for sanctions denied.

31 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Enrichment Enterprises, Inc., Appellant, v. Jempris Realty Corp., Respondent.

1999-07246

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

272 A.D.2d 432; 707 N.Y.S.2d 504; 2000 N.Y. App. Div. LEXIS 5586

April 6, 2000, Submitted

May 15, 2000, Decided

PRIOR HISTORY: [***1] In an action, inter alia, to

recover damages for loss of business property, the
plaintiff appeals from an order of the Supreme Court,
Suffolk County (Doyle, J.), dated June 15, 1999, which
granted the defendant's motion for summary judgment
dismissing the complaint.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff appealed an or-
der of the Supreme Court, Suffolk County (New York)

granting defendant's motion for summary judgment dis-
missing plaintiff's complaint to recover damages for loss
of business property.
OVERVIEW: Plaintiff leased space in a building owned
by defendant wherein plaintiff operated a light manufac-
turing business. The building was destroyed by a fire ig-
nited by lightning strikes during an electrical storm.
Plaintiff filed a lawsuit to recover damages for loss of
business property and lost profits contending defendant's
violation of certain provisions of the New York State
Uniform Fire Prevention and Building Code, N.Y. Comp.
Codes R. & Regs. tit. 9, §§ 1173.1(g), 1163.6(c)(2), ac-
celerated the spread of the fire and caused the loss of
plaintiff's business. The court affirmed, holding although
a violation of N.Y. Comp. Codes R. & Regs. tit. 9, §§
1173.1(g), 1163.6(c)(2), if proven, would have consti-
tuted some evidence of negligence, defendant met its
burden of establishing the alleged negligence was not a
substantial cause of the events which produced the in-
jury.
OUTCOME: Order affirmed, because defendant estab-
lished that while its alleged violations of a uniform fire
prevention and building code might have constituted
some evidence of negligence, the violations were not a
substantial cause of the events which produced the dam-
ages plaintiff sought to recover.
LexisNexis(R) Headnotes
Real Property Law > Landlord & Tenant > General
Overview
Torts > Negligence > Defenses > General Overview
[HN1] Although the violation of N.Y. Comp. Codes R. &
Regs. tit. 9, §§ 1173.1(g), 1163.6(c)(2), if proven, would
constitute some evidence of negligence, a defendant may
meet its burden of establishing as a matter of law that the
alleged negligence was not a substantial cause of the
events which produced the injury.
COUNSEL: Ciotti & Damm, LLP, Mineola, N.Y. (Har-
old F. Damm of counsel), for appellant.
Kramer Martynetz & Verbesey, New York, N.Y. (Paul
32 of 55 DOCUMENTS
Page 82
Verbesey of counsel), for respondent.
JUDGES: Joy, J. P., Florio, H. Miller and Smith, JJ.,
concur.
OPINION
[*432] [**504] Ordered that the order is affirmed,
with costs.
A building owned by the defendant, in which the
plaintiff leased space for its light manufacturing busi-
ness, was destroyed by a fire. The unrebutted evidence
in the record attributed the cause of the fire to one or two
lightning strikes during an electrical storm. The plaintiff
commenced this action to recover damages for loss of
business property and lost profits [*433] contending
that the defendant's violation of certain provisions of the
State Uniform Fire Prevention and Building Code (9
NYCRR 1173.1 [g]; 1163.6 [c] [2]), accelerated the
spread of the fire and caused the loss of its entire busi-
ness.
[***2] [HN1] Although the violation of those pro-
visions, if proven, would constitute some evidence of
negligence (see, Hill v Cartier, 258 AD2d 699; McCul-
lough v Gardner, 187 AD2d 937), the defendant met its
burden of establishing as a matter of law that the alleged
negligence was not "a substantial cause of the events
which produced the injury" (Derdiarian v Felix Contr.
Corp., 51 NY2d 308, 315). The defendant's expert, who
had 20 years experience in investigating fires, concluded
that the fire rapidly accelerated due to the wind, the tar
roof, and the flammable materials stored by the tenants,
and that the violations cited by the plaintiff were "innoc-
uous factors" in contributing to the rapid spread of the
fire.
[**505] The expert's affidavit submitted by the
plaintiff was without probative force and was insufficient
to defeat the motion for summary judgment. The profes-
sional background of the plaintiff's expert, which did not
include experience in investigating fires, was insufficient
to lend credence to his opinions, and he failed to provide
[***3] a scientific basis for his conclusions (see, Ro-
mano v Stanley, 90 NY2d 444). Accordingly, the Supreme
Court properly granted the defendant's motion for sum-
mary judgment dismissing the complaint.
Joy, J. P., Florio, H. Miller and Smith, JJ., concur.
 Page 83

Caution
As of: Sep 10, 2008

Karyn Keeley, Respondent, v. Berley Realty Corp. et al., Respondents, and Abco
Maintenance, Inc., et al., Appellants. (And a Third-Party Action.)

2348

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

271 A.D.2d 299; 707 N.Y.S.2d 68; 2000 N.Y. App. Div. LEXIS 4404

April 18, 2000, Decided

April 18, 2000, Entered

CASE SUMMARY: pellant, post-note-of-issue, landlord

PROCEDURAL POSTURE: Appellants, construction
company and maintenance contractor, challenged order
of Supreme Court, New York County (New York), which
denied cross motions for dismissal of appellee parking
lot owner's claims arising from an underlying action for
personal injuries sustained in a trip and fall caused by
pothole in parking lot.
OVERVIEW: Appellee parking lot owner's motion for
summary judgment against appellant maintenance con-
tractor was properly granted based on a provision in the
parties' contract requiring appellant maintenance con-
tractor to procure liability insurance naming appellee as
an additional insurer. Appellant maintenance contractor's
failure to show that it purchased such insurance rendered
it responsible for appellee's damages resulting from the
underlying personal injury action. Appellant construction
company's cross motion for summary judgment should
have been entertained and granted because it was submit-
ted only one day after the 120-day deadline for making a
postnote-of-issue motion. Absent evidence of contractual
duty to identify or repair potholes without a request from
appellee, appellant construction company could not be
held responsible for a pothole it had never been asked to
repair.
OUTCOME: Order was modified to enter judgment in
favor of appellant construction company, dismissing
complaint and cross claims against it, because appellant
construction company could not be held responsible for
pothole it was never asked to repair; order otherwise af-
firmed.
CORE TERMS: summary judgment, pothole, parking
lot, procure, cross claim, contractor, repair, defendant-ap-
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Time Limita-
tions
Contracts Law > Types of Contracts > Lease Agree-
ments > General Overview
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > General
Overview
[HN1] Where the landlord is aware that the tenant has
failed to procure insurance, in violation of the lease, and
the landlord procures its own insurance, damages in a
subsequent negligence case are limited to the cost of
such insurance.
COUNSEL: [***1] For Plaintiff-Respondent: Maria D.
Spero.
For Defendants-Respondents: Max W. Gershweir.
For Defendants-Appellants: Carol R. Finocchio, Doreen
J. Correia.
JUDGES: Concur--Williams, J. P., Mazzarelli, Rubin,
Saxe and Buckley, JJ.
OPINION
[*299] [**69] Order, Supreme Court, New York
County (Leland DeGrasse, J.), entered on or about April
28, 1999, which, in an action for [*300] personal injur-
ies sustained in a trip and fall caused by a pothole in a
parking lot owned and managed by nonappealing defend-
ants, insofar as appealed from, granted defendant owner's

motion for summary judgment on its cross claim against
defendant-appellant maintenance contractor Abco Main-
tenance for breach of contract to procure insurance, and
denied defendant-appellant maintenance contractors
Abco Maintenance and Virga Construction's cross mo-
tions for summary judgment dismissing the complaint
and any cross claims as against them, unanimously modi-
fied, on the law, to grant Virga's cross motion for sum-
mary judgment dismissing the complaint and any cross
claims as against it, and otherwise affirmed, without
costs. The Clerk is directed to enter judgment in favor of
defendant-appellant Virga Construction [***2] Corp.
dismissing the complaint and any cross claims as against
it.
Defendant owner's motion for summary judgment as
against Abco was properly granted based on the provi-
sion in their contract requiring Abco to procure liability
insurance naming the owner as an additional insured.
Abco's failure to show that it purchased such insurance
renders it responsible for all of the owner's resulting
damages, including liability to plaintiff, and such a de-
termination need not await a factual determination as to
whose negligence, if anyone's, caused plaintiff's injuries
(see, McGill v Polytechnic Univ., 235 AD2d 400, 401-
402; Encarnacion v Manhattan Powell, 258 AD2d 339,
340; compare, Wallen v Polo Grounds Bar & Grill, 198
AD2d 19, 20 [HN1] ["where the landlord is aware that
the tenant has failed to procure insurance, in violation
of the lease, and the landlord procures its own insurance,
damages are limited to the cost of such insurance"]).
Virga's cross motion for summary judgment, which
33 of 55 DOCUMENTS
Cited
As of: Sep 10, 2008
Ronald D. Betterly et al., Appellants, v. Estate of Seymour Silver, Deceased, et al.,
Respondents.
2239
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-
MENT
266 A.D.2d 30; 698 N.Y.S.2d 17; 1999 N.Y. App. Div. LEXIS 11373
November 9, 1999, Decided
Page 84
was made four days before the return date of the owner's
main motion [***3] and only one day after the 120-day
deadline for making a post-note-of-issue motion for sum-
mary judgment, should have been entertained (see, Mir-
anda v Devlin, 260 AD2d 451) and granted. Virga's sub-
missions established that defendant management com-
pany contracted with Abco to provide maintenance; that
Abco submitted weekly reports on the condition of the
premises including any potholes that had been found;
that Virga was an independent contractor who paved
potholes in the parking lot from time to time, when re-
quested by the management company, and would invoice
the management company for any work it did; that Virga
filled potholes and repaved another section of the park-
ing lot some six months before plaintiff's accident, which
work was the last it [**70] did in the [*301] parking
lot before the accident; and that the management com-
pany, which denies knowledge of the pothole in question,
never asked Virga to repair it. Absent evidence of a con-
tractual duty to identify or repair potholes without a re-
quest from the management company, Virga cannot be
held responsible for a pothole it had never been asked to
repair.
Abco's cross motion for summary judgment, [***4]
made well after the 120-day period for making a post-
note-of-issue motion for summary judgment under CPLR
3212 (a), as well as the time for making a cross motion
under CPLR 2215, was properly denied absent any show-
ing of good cause for the lateness.
Concur--Williams, J. P., Mazzarelli, Rubin, Saxe and
Buckley, JJ.

November 9, 1999, Entered
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff police officer ap-
pealed from a judgment of the Supreme Court, Bronx
County (New York) which granted defendants property
owners' motion for summary judgment dismissing the
complaint to recover for injuries sustained on defendants'
property.
OVERVIEW: Plaintiff, a police officer, brought an ac-
tion pursuant to N.Y. Gen. Mun. Law § 205-e and com-
mon law negligence to recover for injuries sustained on
premises owned by defendants. Trial court granted de-
fendants' motion for summary judgment dismissing the
complaint. The alleged violations of the city and admin-
istrative health code were insufficient predicates for im-
position of liability. Plaintiff did not fall from an un-
guarded window and was not assaulted by an assailant
who may have unlawfully gained access to the building
due to the failure to secure its doors. Plaintiff's injuries
were sustained while attempting to prevent a suspect
from fleeing. The causal connections between the ab-
sence of window guards and locked doors and plaintiff's
injuries were too remote for the imposition of liability.
Judgment was affirmed.
OUTCOME: Affirmed. The causal connections between
the absence of window guards and locked doors, and
plaintiff's injuries, were too remote for the imposition of
liability. The alleged violations of the city and adminis-
trative health code were insufficient predicates for im-
position of liability.
CORE TERMS: window, doors, window guards, im-
position of liability, unguarded, intruder, fleeing
COUNSEL: [***1] For Plaintiffs-Appellants: Chris-
topher L. Salley.
For Defendants-Respondents: William P. DeVito.
JUDGES: Concur--Sullivan, J. P., Rosenberger, Lerner,
Rubin and Andrias, JJ.
34 of 55 DOCUMENTS
Page 85
OPINION
[*30] [**17] Order, Supreme Court, Bronx
County (Lottie Wilkins, J.), entered July 9, 1998, which
granted defendants' motion for summary [*31] judg-
ment dismissing the complaint, unanimously affirmed,
without costs.
Plaintiff, a New York City police officer, brought
this action to recover pursuant to [**18] General Muni-
cipal Law § 205-e and on a common law negligence the-
ory for injuries he sustained in premises owned by de-
fendants when, in the course of his official duties, he fell
within an apartment located on defendants' premises
while attempting to apprehend a criminal suspect who
was fleeing the premises through a window without bars.
Under the circumstances at bar, however, neither the al-
leged violations of the New York City Health Code and
Administrative Code of the City of New York concerning
the obligation to advise tenants of the option to have the
owner install window guards (24 RCNY 12-02, 12-03,
131.15; Administrative Code § 17-123), nor the owner's
[***2] obligation to secure its premises from intruders
(Administrative Code §§ 27-127, 27-128) are sufficient
predicates for imposition of section 205-e liability.
Plaintiff did not fall from an unguarded window and was
not assaulted by an assailant who may have unlawfully
gained access to the building due to the failure to secure
its doors. Plaintiff's injuries were sustained while at-
tempting to prevent the suspect from fleeing. Even under
the liberal causation standards applicable under section
205-e (see, O'Connell v Kavanagh, 231 AD2d 29, 30),
the causal connections between the absence of window
guards and locked doors, on the one hand, and plaintiff's
injuries, on the other, are too remote for the imposition
of liability. Although a question of fact exists as to
whether the suspect was an intruder or was lawfully on
the premises (see, Carmen P. v PS&S Realty Corp., 259
AD2d 386, 388), the negligence cause of action, also
predicated upon unlocked doors and an unguarded win-
dow, like the section 205-e claim, was properly dis-
missed on proximate cause grounds.
Concur--Sullivan, J. P., Rosenberger, [***3] Lern-
er, Rubin and Andrias, JJ.
 Page 86

Cited
As of: Sep 10, 2008

Carmine Guadagno, Appellant, v. Terrace Tenants Corp. et al., Respondents.

98-06516, 99-03716

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT

262 A.D.2d 355; 691 N.Y.S.2d 146; 1999 N.Y. App. Div. LEXIS 6348

April 21, 1999, Submitted

June 7, 1999, Decided

PRIOR HISTORY: [***1] In an action to recover
damages for personal injuries, the plaintiff appeals from
(1) an order of the Supreme Court, Kings County (Arni-
otes, J.), dated May 13, 1998, which granted the defend-
ants' motion pursuant to CPLR 4401, made at the close
of the plaintiff's case, for judgment as a matter of law on
the ground that the plaintiff failed to prove a prima facie
case, and (2) a judgment of the same court, dated June
23, 1998, in favor of the defendants and against her dis-
missing the complaint.
CASE SUMMARY:
determined that the burglary was foreseeable, and there
was sufficient evidence to allow the jury to determine if
the absence of the lights contributed to the assault.
OUTCOME: The court reversed the judgment granting
defendant landlords' motion for summary judgment, rein-
stated the complaint, and granted a new trial because de-
fendants owed a duty to take minimal precautions to pro-
tect tenants from foreseeable harm, including a third
party's foreseeable criminal conduct, and defendants'
failure to light the courtyard outside of plaintiff's apart-
ment was prima facie evidence of defendants' negli-
gence.

PROCEDURAL POSTURE: Plaintiff tenant appealed CORE TERMS: courtyard, apartment, foreseeable,
an order from the Supreme Court, Kings County (New prima facie case, criminal conduct, proximate cause, as-
York) that granted defendant landlords' motion pursuant sault
to N.Y. C.P.L.R. 4401 for judgment as a matter of law on
the ground that plaintiff failed to prove a prima facie case LexisNexis(R) Headnotes
of negligence and thereby dismissed plaintiff's com-
plaint.

OVERVIEW: Plaintiff tenant sued defendant landlords
for personal injuries incurred when plaintiff's apartment
was burglarized and he was beaten, alleging that defend-
ants were negligent in failing to equip the courtyard with
artificial light. The lower court granted defendants' mo-
tion pursuant to N.Y. C.P.L.R. 4401 and entered judgment
for defendants because plaintiff failed to prove a prima
facie case, dismissing the complaint. Plaintiff appealed
and the court reversed and reinstated the complaint be-
cause defendants owed a duty to take minimal precau-
tions to protect tenants from foreseeable harm, including
a third party's foreseeable criminal conduct. Defendants'
failure to light the courtyard outside of plaintiff's apart-
ment, in violation of N.Y. Mult. Dwell. Law § 26(7-a)
and N.Y.C. Admin. Code § 27-739, was prima facie evid-
ence of defendants' negligence. The court also ruled that
plaintiff submitted sufficient evidence of prior criminal
conduct at the building from which the jury could have
Torts > Negligence > Duty > Foreseeability of Injury
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Crimin-
al Acts
[HN1] Landlords owe a duty to take minimal precautions
to protect tenants from foreseeable harm, including a
third party's foreseeable criminal conduct.
COUNSEL: Ziegler & Robinson (Seligson, Rothman &
Rothman, New York, N.Y. [Martin S. Rothman, Ben-
jamin Robinson, and Alyne I. Diamond] of counsel), for
appellant.
Anne D. Pope, New York, N.Y. (Robert R. Groezinger of
counsel), for respondents.
JUDGES: S. Miller, J. P., Sullivan, Friedmann, Luciano
and Feuerstein, JJ., concur.

OPINION
[*356] [**147] Ordered that the appeal from the
order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law,
the defendants' motion to dismiss the complaint is
denied, the complaint is reinstated, the order is vacated,
and a new trial is granted, with costs to abide the event.
The appeal from the intermediate [***2] order must
be dismissed because the right of direct appeal therefrom
terminated with the entry of judgment in the action (see,
Matter of Aho, 39 NY2d 241, 248). The issues raised on
appeal from the order are brought up for review and have
been considered on the appeal from the judgment (CPLR
5501 [a] [1]).
The plaintiff brought the instant action to recover
damages for injuries he allegedly sustained when he was
assaulted by unknown persons who burglarized his first-
floor apartment. At trial, he presented evidence that the
assailants entered his apartment at about 5:00 A.M.,
through a living room window which leads to an elevated
courtyard, and that the courtyard outside of his apartment
was not lit at all. He alleged that the defendants were
negligent, inter alia, in failing to equip the courtyard
with a means of artificial light. The court granted the de-
fendants' motion pursuant to CPLR 4401, made at the
close of the plaintiff's case, for judgment as a matter of
law on the ground that the plaintiff failed to prove a
prima facie case.
[**148] Viewing the evidence in the light most fa-
vorable to the [***3] plaintiff, the Supreme Court im-
properly concluded that "there [was] no rational process"
by which the jury could have based a finding in favor of
the plaintiff in the instant case (Szczerbiak v Pilat, 90
NY2d 553, 556). [HN1] The defendants owed a duty "
'to take minimal precautions to protect tenants from fore-
seeable harm', including a third party's foreseeable crim-
inal conduct" (Burgos v Aqueduct Realty Corp., 92 NY2d
35 of 55 DOCUMENTS
Analysis
As of: Sep 10, 2008
Jerrold O'Grady et al., Appellants, v. New York City Housing Authority, Respond-
ent.
Page 87
544, 548, quoting Jacqueline S. v City of New York, 81
NY2d 288, 293-294; see, Miller v State of New York, 62
NY2d 506, 513).
The defendants' failure to light the courtyard outside
of the plaintiff's apartment, in violation of Multiple
Dwelling Law § 26 (7-a) and Administrative Code of
City of New York § 27-739, was prima facie evidence of
their negligence (see, Tepoz v Sosa, 241 AD2d 449;
Barnes v Stone-Quinn, 195 AD2d 12, 14). In addition,
the plaintiff submitted sufficient evidence of prior crim-
inal conduct at the building from which the jury could
[***4] have determined that the subject incident was
foreseeable (see, Jacqueline S. v City of New York,
supra, at 294-295; Loeser v Nathan Hale Gardens, 73
AD2d 187, 190).
[*357] Moreover, in establishing a prima facie case
that the lack of lighting in the courtyard outside his
apartment was a proximate cause of the subject incident,
the "plaintiff is not required to exclude every other pos-
sible cause, but need only offer evidence from which
proximate cause may be reasonably inferred ... [The]
plaintiff's burden of proof on this issue is satisfied if the
possibility of another explanation for the event is suffi-
ciently remote or technical 'to enable the jury to reach its
verdict based not upon speculation, but upon the logical
inferences to be drawn from the evidence' " (Burgos v
Aqueduct Realty Corp., 92 NY2d 544, 550, quoting
Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743,
744-745). In the instant case, the plaintiff's evidence was
sufficient. "Although it is of course impossible to state
with certainty that the assault would not have occurred if
[the courtyard] had been properly illuminated, it was
[***5] properly a jury question under all the circum-
stances to determine whether the absence of the lights in
fact contributed substantially to the criminal assault and
subsequent injuries" (Loeser v Nathan Hale Gardens,
supra, at 191; see, Gibbs v Diamond, 256 AD2d 266; cf.,
Rodriguez v New York City Hous. Auth., 87 NY2d 887).
S. Miller, J. P., Sullivan, Friedmann, Luciano and
Feuerstein, JJ., concur.

406
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-
MENT
259 A.D.2d 442; 687 N.Y.S.2d 352; 1999 N.Y. App. Div. LEXIS 3236
March 30, 1999, Decided
March 30, 1999, Entered
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiffs sought review
of the decision of the trial court (New York), which gran-
ted defendant's motion to dismiss plaintiffs' action for
negligence.
OVERVIEW: Plaintiff firefighter was injured when,
while ascending stairs in response to an alarm at defend-
ant's residential premises, he slipped on liquid leaking
from an open bag of garbage. He sued for damages under
both statutory and common-law theories of negligence.
The trial court granted defendant's motion to dismiss. On
appeal, the court reversed. N.Y. Gen. Mun. Law § 205-a
created a cause of action for firefighters where injury res-
ulted from the negligent failure to comply with local or-
dinances. Defendant was required under the law to main-
tain its premises in a clean, safe condition. Notice of the
condition of the premises could be inferred from evid-
ence in the record of defendant's continuing battle with
tenants who left garbage in the building's common areas.
While a common law claim required a greater threshold
of notice of the hazardous condition, there was ample
evidence in the record that tenants left garbage in bags in
the common areas, and that vagrants broke open the bags
in search of usable items. The ongoing pattern of such
activity, along with the established routine of cleaning up
and warning tenants, constituted constructive notice to
defendant of the condition.
OUTCOME: Grant of defendant's motion to dismiss
plaintiffs' action for negligence reversed and complaint
reinstated. Municipal law created a cause of action for
firefighters where injury resulted from negligent failure
to comply with local ordinances.
CORE TERMS: common-law, garbage, notice, tenants,
bag, common areas, firefighter, safe
LexisNexis(R) Headnotes
Page 88
Governments > Local Governments > Claims By &
Against
Torts > Negligence > Proof > Violations of Law > Gen-
eral Overview
Torts > Premises Liability & Property > General
Premises Liability > Dangerous Conditions > Duty to
Maintain
[HN1] N.Y. Gen. Mun. Law § 205-a creates a cause of
action for firefighters where injury results from the negli-
gent failure to comply with local ordinances.
COUNSEL: [***1] For Plaintiffs-Appellants: Barry R.
Strutt.
For Defendant-Respondent: Jeannine LaPlace.
JUDGES: Concur--Nardelli, J. P., Wallach, Lerner and
Rubin, JJ.
OPINION
[*442] [**353] Order, Supreme Court, New York
County (Richard Lowe, III, J.), entered March 5, 1998,
which granted defendant's motion to dismiss the com-
plaint, unanimously reversed, on the law, without costs,
the motion denied and the complaint reinstated.
Plaintiff firefighter was injured when, while ascend-
ing stairs in response to an alarm at defendant's Bronx
residential premises, he slipped on liquid leaking from an
open bag of garbage. He sued for damages under both
statutory and common-law theories of negligence.
[HN1] General Municipal Law § 205-a creates a
cause of action for firefighters where injury results from
the negligent failure to comply with local ordinances,
inter alia. Alleged here are violations of various provi-
sions of title 27 of the Administrative Code of the City of
New York, to wit: section 27-127 (general requirement to
maintain buildings and their parts in a safe condition),
section 27-128 (owner responsibility for safe mainten-
ance of a building and its facilities), and section 27-2011
(requirement [***2] of an owner to maintain the public
parts of a building in a clean and sanitary condition).
Notice of the condition ( Lusenskas v Axelrod, 183 AD2d
 Page 89

244, appeal dismissed 81 NY2d 300) can be inferred
from evidence in the record of defendant's continuing
battle with tenants who leave garbage in the common
areas of the building (see, O'Connell v Kavanagh, 231
AD2d 29).
While a common-law claim requires a greater
threshold of [*443] notice of the hazardous condition,
there was ample evidence in the record that tenants
would leave garbage in bags in the common areas, and
that vagrants who slept in those hallways and stairwells
at night would break open the bags in search of usable
items. The ongoing pattern of such activity, along with
the established routine of cleaning up and warning ten-
ants, constituted constructive notice to defendant of this
recurrent condition ( Megally v 440 W. 34th St. Co., 246
AD2d 346; O'Connor-Miele v Barhite & Holzinger, 234
AD2d 106; Alvarez v Mendik Realty Plaza, 176 AD2d
557, lv denied 79 NY2d 756).
Plaintiffs have established viable [***3] claims un-
der both statutory and common-law theories of recovery.
Concur--Nardelli, J. P., Wallach, Lerner and Rubin,
JJ.

36 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Luisa R., Appellant, v. City of New York et al., Respondents.

2776

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

MENT

253 A.D.2d 196; 686 N.Y.S.2d 49; 1999 N.Y. App. Div. LEXIS 2280

March 4, 1999, Decided

March 4, 1999, Entered

PRIOR HISTORY: [***1] Appeal from an order of

the Supreme Court (Douglas McKeon, J.), entered Feb-
ruary 7, 1997 in Bronx County, which, to the extent ap-
pealed from, granted defendants' motion for summary
judgment dismissing the complaint, and denied plaintiff's
cross motion to amend her complaint.
DISPOSITION: Defendants' motion for summary
judgment denied, and plaintiff's cross motion to amend
her complaint grantes.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff appealed the de-
cision of the Supreme Court, Bronx County (New York),
which granted defendants' motion for summary judgment
in plaintiff's suit for personal injuries based upon defend-
ants' negligence.
OVERVIEW: Plaintiff was assaulted and raped in her
apartment which was located in a building that was
owned and operated by defendant city and defendant De-
partment of Housing Preservation and Development
(HPD). Before the assault plaintiff had notified defend-
ants about the presence of drug dealers and other non-
tenants. Plaintiff's negligence suit against defendants'
city, HPD, and police department alleged three separate
theories of liability. She alleged that defendant city and
HPD were negligent in allowing a dangerous and hazard-
ous condition to exist and in failing to take precautionary
measures to secure the premises against intruders.
Plaintiff also alleged that defendant police department
had negligently failed to fulfill its special duty to protect
her. The court reversed the grant of summary judgment
as to defendant city and HPD where triable issues of fact
had been raised as to whether plaintiff's injuries were a
foreseeable result of defendants' inaction in removing the

drug dealers and whether her injuries were proximately
caused by defendants' negligence. The court upheld the
grant of summary judgment because no special relation-
ship existed between plaintiff and the police.
OUTCOME: The judgment granting defendants' motion
for summary judgment was reversed in part because is-
sues of triable fact were raised regarding defendants'
negligence in allowing a dangerous condition to exist
and in failing to take precautionary measures because
plaintiff had informed defendants' of such conditions, but
affirmed as to allegation that defendant police had
breached its duty to protect plaintiff because no special
relationship existed.
CORE TERMS: drug dealers, landlord, tenant, criminal
activity, assailant's, cause of action, intruder, summary
judgment, proximate cause, inferred, criminal assault,
police protection, arrests, rape, police department, muni-
cipality's, common-law, entrance, evict, locks, negli-
gence action, apartment building, apartment, attacker,
reasonably foreseeable, issue of fact, ample evidence,
unlawful use, vacant apartments, nontenant
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Crimin-
al Acts
[HN1] A landlord has a common-law duty to take reason-
able precautionary measures to protect members of the
public from the reasonably foreseeable criminal acts of
third persons on the premises.
Torts > Negligence > Causation > Proximate Cause >
General Overview
Torts > Negligence > Proof > Evidence > Province of
Court & Jury
[HN2] While a plaintiff in a negligence case must estab-
lish that the defendant's negligence was the proximate
cause of his or her injuries, a plaintiff is not required to
exclude every other possible cause, but need only offer
evidence from which proximate cause may be reasonably
inferred.
Torts > Premises Liability & Property > Lessees &
Lessors > General Overview
[HN3] In a case alleging that the assailant gained access
to the premises through a negligently maintained en-
trance, plaintiff can recover only if the assailant was an
intruder.
Page 90
Governments > Local Governments > Claims By &
Against
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > Crimin-
al Acts
[HN4] A cause of action is stated if plaintiff alleges that
the landlord was given notice of persistent criminal
activity on the premises creating the likelihood of injury
to others, and further demonstrates a causal relationship
between the complained-of activities and plaintiff's injur-
ies.
Business & Corporate Law > Agency Relationships >
Duties & Liabilities > Knowledge & Notice > General
Overview
Governments > Local Governments > Police Power
Torts > Negligence > Duty > Affirmative Duty to Act >
Special Relationships > Government Officials
[HN5] A municipality may not be held liable for injuries
resulting from the failure to provide police protection to
an individual absent a "special relationship" between the
municipality and the individual. The elements of this
"special relationship" are: (1) an assumption by the mu-
nicipality, through promises or actions, of an affirmative
duty to act on behalf of the party who was injured; (2)
knowledge on the part of the municipality's agents that
inaction could lead to harm; (3) some form of direct con-
tact between the municipality's agents and the injured
party; and (4) that party's justifiable reliance on the mu-
nicipality's affirmative undertaking.
HEADNOTES
Landlord and Tenant - Landlord's Duty to Provide
Adequate Security - Failure to Remove Criminals
1. In a negligence action arising out of the criminal
assault and rape of plaintiff in her apartment building, the
IAS Court erred in granting summary judgment dismiss-
ing plaintiff's common-law negligence claim based on in-
adequate security, where the court improperly read
plaintiff's complaint as alleging only a failure by defend-
ants to secure the outer doors and locks to the premises,
since the complaint clearly includes the independent al-
legation that, apart from any security failures at the
building's entrances, defendant landlords were independ-
ently negligent for failing to remove the drug dealers en-
gaging in criminal activity on the premises. Moreover,
in light of a landlord's common-law duty to take reason-
able precautionary measures to protect members of the
public from the reasonably foreseeable criminal acts of
third persons on the premises, plaintiff's additional the-
ory of negligence based on such duty is also viable.
 Page 91

Negligence - Foreseeability - Landlord's Failure to from a police report that included an informant's state-
Remove Criminals - Criminal Assault on Tenant ment that the assailant was a drug purchaser who fol-
lowed plaintiff to her apartment with the intent to rape
2. In a negligence action arising out of the criminal
her, which was rejected as inadmissible hearsay, ample
assault and rape of plaintiff in her apartment building,
evidence existed from which the assailant's intruder
plaintiff has raised a triable issue of fact as to whether
status may be inferred.
her injuries were a foreseeable result of defendant's inac-
tion in failing to remove drug dealers from the building Landlord and Tenant - Landlord's Duty to Provide
where plaintiff testified that drug dealing was rampant in Adequate Security - Failure to Remove Criminals - Stat-
the building, that the drug dealers had threatened her and utory Cause ofAction - Amendment to Pleading
had committed burglaries, and that she communicated
4. In a negligence action arising out of the criminal
these illicit activities to defendants. Since the landlord
assault and rape of plaintiff in her apartment building, the
was repeatedly informed of ongoing criminal activity in
IAS Court erred in concluding that Real Property Law §
the building and took minimal efforts to stop it, it was for
231 (2), which provides that property owners who
the jury to determine whether the landlord's failure to
"knowingly leas[e] or giv[e] possession" of all or part of
evict the alleged drug dealers could serve as a predicate
their property for unlawful use, or who "knowingly per-
for liability for the plaintiff's injuries. Although there
mit[] the same to be so used", shall be liable for any
were no reported sexual assaults on the premises, there is
damage resulting from such unlawful use, was inapplic-
no requirement that the prior criminal activity relied on
able on the ground that there was no landlord and tenant
to establish foreseeability be of the same type of criminal
or other relationship which would empower the municip-
conduct to which plaintiff was subjected. This is not a
al defendants to evict those engaging in unlawful con-
case where the plaintiff's assertions of prior criminal
duct, since there is no such requirement in the statute.
activity on the premises were conclusory, or that the type
Rather, a cause of action is stated if plaintiff alleges that
of prior criminal activity was so dissimilar to that which
the landlord was given notice of persistent criminal
caused plaintiff's injuries that the latter was not reason-
activity on the premises creating the likelihood of injury
ably foreseeable.
to others, and further demonstrates a causal relationship
Negligence - Proximate Cause - Landlord's Failure between the complained of activities and plaintiff's in-
to Remove Criminals - Criminal Assault on Tenant - juries. Moreover, since the cause of action alleging a vi-
Landlord's Failure to Provide Adequate Security olation of section 231 (2) is based on allegations already
pleaded in plaintiff's common-law negligence claim, and
3. In a negligence action arising out of the criminal
defendants have failed to demonstrate any prejudice by
assault and rape of plaintiff in her apartment building, a
the amendment, or that the claim is barred by the Statute
triable issue of fact has been raised on the issue of prox-
of Limitations, amendment to include this cause of action
imate cause. While a plaintiff in a negligence case must
should have been permitted.
establish that the defendant's negligence was the proxim-
ate cause of his or her injuries, a plaintiff is not required Municipal Corporations - Tort Liability - Special Re-
to exclude every other possible cause, but need only offer lationship - Failure to Provide Police Protection
evidence from which proximate cause may be reasonably
5. In a negligence action arising out of the criminal
inferred. With respect to plaintiff's theory that defendants
assault and rape of plaintiff in her apartment building, the
allowed a dangerous condition to exist on the premises,
IAS Court correctly concluded that no special relation-
she has provided ample evidence from which it may be
ship existed between the plaintiff and the police depart-
inferred that the failure to evict the drug dealers was a
ment so as to impose liability on the latter for failing to
substantial factor in causing her injuries. To the extent
provide police protection. While it is arguable that the
that plaintiff alleged that the assailant gained access to
police assumed a duty to act on plaintiff's behalf by vir-
the premises through a negligently maintained entrance,
tue of making arrests of drug dealers at the building, the
plaintiff can recover only if the assailant was an intruder
evidence establishes that plaintiff could not have justifi-
and must offer some evidence from which the assailant's
ably relied on the police department's asserted promise to
intruder status may be inferred. Plaintiff submitted evid-
protect her, where a police officer testified that plaintiff
ence that the building had very few tenants, all of whom
essentially told him that she did not want the police to
she knew, rendering it less likely that the attacker was a
make arrests in the building, and plaintiff herself con-
tenant or an invitee; that for the entire time she lived
ceded that the officer told her that "he couldn't do any-
there, the locks to the front entrance and intercom were
thing about it." Under these circumstances, plaintiff
broken; and that she observed a man dressed exactly like
could not have reasonably relied on any purported as-
her attacker in the lobby, in the presence of several non-
sumption by the police of a duty to protect her, and the
tenant drug dealers, prior to the attack. Thus, even apart
vague assurances by municipal employees that they

would "fix the building" cannot reasonably be construed
as a promise of police protection.
COUNSEL: John E. Fitzgerald of counsel (Deborah P.
Henkin, Michael D. Neuman and John M. Daly on the
brief; Fitzgerald & Fitzgerald, P. C., attorneys), for ap-
pellant.
Ronald E. Sternberg of counsel (Leonard Koerner on the
brief; Michael D. Hess, Corporation Counsel of New
York City, attorney), for respondents.
JUDGES: Sullivan, J. P., Nardelli and Williams, JJ.,
concur.
OPINION BY: Angela M. Mazzarelli
OPINION
[*198] [**51] Mazzarelli, J.
On April 3, 1990, plaintiff was returning to her
fourth-floor apartment located at 450 East 136th Street,
Bronx, New York (building), when a Hispanic man wear-
ing blue jeans and a stocking on his head pushed her into
the apartment from behind, and then assaulted and raped
her. Plaintiff's assailant was never apprehended [***2]
nor identified. However, plaintiff remembers seeing a
man dressed like the attacker in the lobby of her building
a few hours before the attack, loitering in the presence of
drug dealers.
The building was owned and managed by the City
and its Department of Housing Preservation and Devel-
opment (HPD). [*199] Plaintiff moved into the build-
ing in May 1989, and during the time she lived there,
only 3 of the 8 apartments were occupied. From the be-
ginning, plaintiff noticed that the common areas of the
building were dirty and in a state of disrepair. The locks
to the front door of the building and the vacant apart-
ments were consistently broken, as was the intercom sys-
tem. Further, nontenant drug dealers continually con-
gregated in the lobby of the building and performed drug
transactions there. During the winter months, several of
the drug dealers lived in the vacant apartments.
During September and October of 1989, plaintiff be-
came so fearful of the constant presence of the intruders
in the building that she called defendant's building man-
ager nearly every day to request that they be removed.
The building manager visited the building four times in
late 1989 and reported the [***3] drug activity to HPD's
Narcotic Group, which investigated the matter and con-
firmed that drug dealers were living and selling drugs in
the building.
Plaintiff also complained to the police. She had sev-
Page 92
eral phone conversations with a [**52] Police Officer
Garcia, who told her to "try to stay calm and don't mess
with these people because [she] could get harmed." Al-
though plaintiff expressed her desire to have the drug
dealers removed from the building, according to Garcia
she also said that she was hesitant to have the police
make arrests because, with the small number of tenants
in the building, she feared that the dealers would "narrow
it down to her" and retaliate against her. Indeed, Garcia
testified at his deposition that "[plaintiff] practically told
me that she really didn't want anything being done at the
location."
Around January 1990, after Garcia encouraged
plaintiff to go in person to the precinct, the police made
several arrests in plaintiff's building for narcotics of-
fenses. Additionally, City employees came to the build-
ing and sealed up the vacant apartments, and, according
to plaintiff, told her that "they were going to fix the
building, that all that was [***4] going to end."
However, after the drug activity resumed almost immedi-
ately, Garcia told plaintiff "that he couldn't do anything
else because those people who were arrested were free
one day after, so he couldn't do anything about it."
In June 1990, plaintiff commenced the instant action
for personal injuries against the City, HPD and the Police
Department. In a single cause of action for negligence,
plaintiff asserts at least three separate theories of liability.
Plaintiff first alleges that the City and HPD were negli-
gent in their capacity [*200] as landowners in allowing
"a dangerous and hazardous condition to exist" on the
premises. She further claims they were negligent in fail-
ing to take reasonable precautionary measures to secure
the premises against intruders (e.g., functioning locks, an
intercom system or otherwise) despite notice of prior
criminal activity on the premises by nontenants. Lastly,
plaintiff complains that the Police Department assumed a
special duty to protect her, and negligently failed to ful-
fill such duty.
Defendants moved for summary judgment, arguing
that no special duty existed to provide police protection
to plaintiff, and that plaintiff's [***5] inadequate secur-
ity claim should be dismissed because the element of
proximate cause could not be established since there was
no evidence that the assailant was an intruder, rather than
a tenant or an invitee. Accepting both of these argu-
ments, the IAS Court granted defendants' motion for
summary judgment. The court also denied plaintiff's
cross motion to amend her complaint to allege a violation
of Real Property Law § 231 (2), finding that section in-
applicable.
The IAS Court erred in granting summary judgment
dismissing plaintiff's common-law negligence claim
based on inadequate security. Preliminarily, the court

improperly read plaintiff's complaint as alleging only a
failure by defendants to secure the outer doors and locks
to the premises. The complaint clearly includes the inde-
pendent allegation that, apart from any security failures
at the building's entrances, defendants were independ-
ently negligent for failing to remove the drug dealers en-
gaging in criminal activity on the premises. As case law
has consistently recognized [HN1] a landlord's common-
law duty to take reasonable precautionary measures to
protect members of the public from the reasonably
[***6] foreseeable criminal acts of third persons on the
premises (see, Jacqueline S. v City of New York, 81 NY2d
288, 293-294; Garrett v Twin Parks Northeast Site 2
Houses, 256 AD2d 224; Beatty v National Assn. for Ad-
vancement of Colored People, 194 AD2d 361, 364, lv
denied 82 NY2d 662), plaintiff's additional theory of neg-
ligence, not ruled on by the IAS Court, is also viable.
Plaintiff has raised a triable issue of fact as to
whether her injuries were a foreseeable result of defend-
ants' inaction in failing to remove the drug dealers from
the building (see, Jacqueline S. v City of New York,
supra, at 294; Rivera v Sebastian Enters., 243 AD2d
291). Here, plaintiff testified that the drug dealing was
rampant in the building, that the drug dealers [*201]
had threatened her and had committed burglaries and that
she communicated these illicit activities to defendants
(see, Bonano v S.Z. Realty Corp., 256 AD2d 268). In-
deed, defendants do not dispute that they received nu-
merous complaints of drug dealing [**53] in the build-
ing, and that arrests were made and vacant apartments
[***7] were sealed in response thereto. Since the land-
lord was repeatedly informed of ongoing criminal activ-
ity in the building and took minimal efforts to stop it, "it
was for the jury to determine whether the landlord's fail-
ure to evict the alleged drug dealers could serve as a pre-
dicate for liability for the plaintiff's injuries ( Simmons v
City of New York, 168 AD2d 230)." ( Beatty v National
Assn. for Advancement of Colored People, supra, at
364.)
Although there were no reported sexual assaults on
the premises, there is no requirement that the prior crim-
inal activity relied on to establish foreseeability "be of
the same type of criminal conduct to which plaintiff was
subjected" ( Jacqueline S. v City of New York, supra, at
294). This is not a case where the plaintiff's assertions of
prior criminal activity on the premises were conclusory
(cf., Ragona v Hamilton Hall Realty, 251 AD2d 391), or
that the type of prior criminal activity was so dissimilar
to that which caused plaintiff's injuries that the latter was
not reasonably foreseeable (cf., Jarosz v 3135 Johnson
Tenant Owners Corp., 246 AD2d 488). [***8]
We also find that a triable issue of fact has been
raised on the issue of proximate cause. [HN2] While a
Page 93
plaintiff in a negligence case must establish that the de-
fendant's negligence was the proximate cause of his or
her injuries, "[a] plaintiff is not required to exclude every
other possible cause, but need only offer evidence from
which proximate cause may be reasonably inferred [cita-
tions omitted]" ( Burgos v Aqueduct Realty Corp., 92
NY2d 544, 550). With respect to plaintiff's theory that de-
fendants allowed a dangerous condition to exist on the
premises, she has provided ample evidence from which it
may be inferred that the failure to evict the drug dealers
was a substantial factor in causing her injuries (see,
Beatty v National Assn. for Advancement of Colored
People, supra).
However, [HN3] in a case alleging that the assailant
gained access to the premises through a negligently
maintained entrance, "plaintiff can recover only if the as-
sailant was an intruder" ( Burgos v Aqueduct Realty
Corp., supra, at 551). Thus, to survive a defendant's mo-
tion for summary judgment a plaintiff must offer some
evidence from which the assailant's [***9] intruder
[*202] status may be inferred (supra, at 551). Plaintiff
has done so here. She submitted evidence that the build-
ing had very few tenants, all of whom she knew, render-
ing it less likely that the attacker was a tenant or an invit-
ee. She further stated that for the entire time she lived
there, the locks to the front entrance and intercom were
broken. Additionally, she stated in an affidavit that she
observed a man dressed exactly like her attacker in the
lobby, in the presence of several nontenant drug dealers,
prior to the attack. Thus, even apart from the police re-
port that included a police informant's statement that the
assailant was a drug purchaser who followed her to her
apartment with the intent to rape her, which was rejected
by the IAS Court as inadmissible hearsay, ample evid-
ence existed from which the assailant's intruder status
may be inferred (supra; see also, Bonano v S.Z. Realty
Corp., supra; Cisse v S.F.J. Realty Corp., 256 AD2d
257).
We further disagree with the IAS Court's determina-
tion that Real Property Law § 231 (2) is inapplicable to
the case at bar. That section provides that [***10] prop-
erty owners who "knowingly leas[e] or giv[e] posses-
sion" of all or part of their property for unlawful use, or
who "knowingly permit[] the same to be so used", shall
be liable for any damage resulting from such unlawful
use. The IAS Court found this section inapplicable be-
cause "there was no landlord and tenant or other relation-
ship which would empower the municipal defendants to
evict those engaging in unlawful conduct." We observe
no such requirement in the statute. [HN4] A cause of ac-
tion is stated if plaintiff alleges that the landlord was giv-
en notice of persistent criminal activity on the premises
creating the likelihood of injury to others, and further
demonstrates a causal relationship between the com-

plained-of activities and plaintiff's injuries ( Maria S. v
Willow Enters., 234 AD2d 177, 178-179). We find no au-
thority to limit the scope [**54] of this statute to man-
dating the removal only of tenants or other identified oc-
cupants.
As the cause of action alleging a violation of Real
Property Law § 231 (2) is based on allegations already
pleaded in plaintiff's common-law negligence claim (see,
Bamira v Greenberg, 256 AD2d 237), [***11] and de-
fendants have failed to demonstrate any prejudice by the
amendment (supra; see also, Napolitano v DGM-I
Corp., 255 AD2d 567), or that the claim is barred by the
Statute of Limitations (see, Weitzenberg v Nassau
County Dept. of Recreation & Parks, 249 AD2d 538),
amendment to include this cause of action should have
been permitted.
[*203] However, we uphold the IAS Court's find-
ing that no special relationship existed between the
plaintiff and the Police Department so as to impose liab-
ility on the latter for failing to provide police protection.
"[HN5] A municipality may not be held liable for injuries
resulting from the failure to provide police protection to
an individual absent a 'special relationship' between the
municipality and the individual ( Kircher v City of
Jamestown, 74 NY2d 251, 255; Cuffy v City of New York,
69 NY2d 255, 260)." ( Merced v City of New York, 75
NY2d 798, 799-800.) "The elements of this 'special rela-
tionship' are: (1) an assumption by the municipality,
through promises or actions, of an affirmative duty to act
on behalf of the party who was injured; (2) knowledge
[***12] on the part of the municipality's agents that in-
action could lead to harm; (3) some form of direct con-
tact between the municipality's agents and the injured
party; and (4) that party's justifiable reliance on the mu-
nicipality's affirmative undertaking [citations omitted]." (
37 of 55 DOCUMENTS
Caution
As of: Sep 10, 2008
Paul Hill, Respondent, v. Stella L. Cartier, Also Known as Stella L. Ditoro, Appel-
lant.
82614
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPART-
MENT
Page 94
Cuffy v City of New York, supra, at 260.)
While it is arguable that the police assumed a duty to
act on plaintiff's behalf by virtue of making arrests at the
building, the evidence establishes that plaintiff could not
have justifiably relied on the Police Department's asser-
ted promise to protect her. Police Officer Garcia testified
at his deposition that plaintiff essentially told him that
she did not want the police to make arrests in the build-
ing, and plaintiff herself conceded that Garcia told her
that "he couldn't do anything about it." Under these cir-
cumstances, plaintiff could not have reasonably relied on
any purported assumption by the police of a duty to pro-
tect her ( Riss v City of New York, 22 NY2d 579). The
vague assurances by City employees that they would "fix
the building" cannot reasonably be construed as a prom-
ise of police protection.
Accordingly, the order [***13] of the Supreme
Court, Bronx County (Douglas McKeon, J.), entered
February 7, 1997, which, to the extent appealed from,
granted defendants' motion for summary judgment dis-
missing the complaint and denied plaintiff's cross motion
to amend her complaint to include a cause of action al-
leging a violation of Real Property Law § 231 (2), should
be reversed, on the law, without costs, defendants' mo-
tion for summary judgment denied, and plaintiff's cross
motion to amend her complaint granted.
Sullivan, J. P., Nardelli and Williams, JJ., concur.
[*204] Order, Supreme Court, Bronx County,
entered February 7, 1997, reversed, on the law, without
costs, defendants' motion for summary judgment dis-
missing the complaint denied, and plaintiff's cross mo-
tion to amend her complaint to include a cause of action
alleging a violation of Real Property Law § 231 (2) gran-
ted.

258 A.D.2d 699; 685 N.Y.S.2d 336; 1999 N.Y. App. Div. LEXIS 939
February 4, 1999, Decided
February 4, 1999, Entered
PRIOR HISTORY: [***1] Appeal from a judgment
of the Supreme Court (Lomanto, J.), entered February
11, 1998 in Schenectady County, upon a verdict rendered
in favor of plaintiff.
DISPOSITION: The judgment is affirmed, with costs.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant appealed from
a judgment of the Supreme Court in Schenectady County
(New York) in favor of plaintiff in plaintiff's action as-
serting that defendant was negligent and that plaintiff's
injuries from falling into an unguarded window in de-
fendant's building were caused by a dangerous and de-
fective condition about which defendant knew or should
have known.
OVERVIEW: Defendant maintained a house as rental
property. Defendant observed that an exterior stairway
was in need of repair and hired a contractor to replace the
stairs. There had been a window, unguarded and unpro-
tected, located adjacent to the stairway prior to and
throughout the time defendant had owned the property.
Defendant rented the property to plaintiff's girlfriend.
During a rainstorm, plaintiff slipped on a step and fell
into the unguarded window, breaking the window and in-
juring plaintiff's arm. The court found that the existence
of a state building code mandate under New York City,
N.Y., Rules of the City of New York, tit. 9, § 713.1(f)(2)
together with notice to defendant of the existence of the
proximity of the window to the stairs was all the proof
needed for plaintiff to establish a prima facie case show-
ing that defendant had notice of the dangerous condition.
Therefore, under the facts in the case, defendant could
properly be held liable for injuries resulting from the un-
protected window. The court rejected defendant's conten-
tion that the jury was improperly instructed and found
that there was sufficient evidence presented at the trial to
support the verdict.
OUTCOME: The court affirmed and held that a state
building code mandate and notice to defendant of the ex-
istence of the proximity of the window to the stairs gave
defendant notice of the allegedly dangerous and defect-
ive condition.
CORE TERMS: window, stairs, building code, notice,
Page 95
unprotected, unguarded, defective condition, evidence of
negligence, stairway, opening, evidence presented, jury's
verdict, contractor, undisputed, ignorance, adjacent, re-
pair, twice, hired, arm
LexisNexis(R) Headnotes
Torts > Negligence > Standards of Care > Reasonable
Care > General Overview
Torts > Premises Liability & Property > General
Premises Liability > Dangerous Conditions > General
Overview
[HN1] A building owner cannot be liable for injuries
caused to a person as a result of a defective condition on
the premises unless it can be shown that the owner cre-
ated the condition or that the owner had actual or con-
structive notice of the condition for such a reasonable
period of time that in the exercise of reasonable care, the
owner should have corrected it.
Real Property Law > Zoning & Land Use > Building &
Housing Codes
Torts > Negligence > Defenses > General Overview
[HN2] Ignorance of the law does not excuse persons so
as to exempt them from the consequences of their acts.
Civil Procedure > Appeals > Standards of Review
[HN3] A jury verdict in favor of the plaintiff will not be
set aside unless the evidence so preponderated in favor of
the defendant that the verdict could not have been
reached on any fair interpretation of the evidence.
COUNSEL: Edward Flink & Associates (Edward B.
Flink of counsel), Latham, for appellant.
De Lorenzo, Gordon, Pasquariello, Weiskopf & Gorman
P.C. (Thomas E. De Lorenzo of counsel), Schenectady,
for respondent.
JUDGES: Mikoll, J. P., Crew III, Peters and Graffeo, JJ.,
concur.
OPINION BY: Spain
OPINION

[*699] [**337] Spain, J.
In 1974, defendant purchased a one-family house in
the Town of Glenville, Schenectady County, where she
resided until 1985, when she moved to Arizona. Instead
of selling the house, she decided to maintain it as rental
[**338] property. Thereafter, she made regular visits to
this area at least twice a year during which she went to
the house to visit her tenants. In 1992, during one of her
visits, she observed that the exterior stairway in the rear
of the house was in need of repair and hired a contractor
to replace the stairs. Notably, there has been a window,
unguarded and unprotected, located adjacent to the lower
portion of the stairway on the left side prior [***2] to
and throughout the time defendant has owned the prop-
erty. In 1994, defendant rented the property to plaintiff's
girlfriend. In [*700] August of that same year, during a
rainstorm and while attempting to ascend the stairway in
question to enter the house, plaintiff slipped on the
second step and fell to the left into the unguarded win-
dow, causing the window to break and resulting in severe
injuries to his arm. Plaintiff commenced this action al-
leging negligence, asserting that his injuries were
caused by the dangerous and defective condition about
which defendant knew or should have known. During
the course of the trial, plaintiff offered evidence that the
unprotected window was in violation of the State Uni-
form Fire Prevention and Building Code (hereinafter
State building code) which states, in pertinent part, that
"[w]indow openings on stairs or landings, and well open-
ings, shall be guarded by railings or other equivalent pro-
tection" (9 NYCRR 713.1 [f] [2]). The jury returned a
verdict in favor of plaintiff and a judgment was entered
from which defendant now appeals.
We affirm. " '[[HN1] A] building owner cannot be
liable for injuries caused to a person as a result [***3] of
a defective condition on the premises unless it can be
shown that the owner created the condition or that [the
owner] had actual or constructive notice of the condition
for such a reasonable period of time that in the exercise
of reasonable care, the owner should have corrected it' " (
Parsons v City of New York, 195 AD2d 282, 284, quoting
Trujillo v Riverbay Corp., 153 AD2d 793, 794; see, Pol-
ipo v Sanders, 227 AD2d 256, 257, lv denied 88 NY2d
812). Here, the key question when determining whether
defendant could have been held liable for the condition
of the stairs was whether defendant had notice of the al-
legedly dangerous and defective condition. The issue of
whether or not defendant had notice that this condition,
namely the absence of some form of protection for the
window, was a violation of the State building code is ir-
relevant because " [HN2] '[i]gnorance of the law does
not excuse persons so as to exempt them from the con-
sequences of their acts' " ( National Conversion Corp. v
Cedar Bldg. Corp., 23 NY2d 621, 628, quoting Municip-
Page 96
al Metallic Bed Mfg. Corp. v Dobbs, 253 NY 313, 317).
[***4] Defendant was well aware that the window
which was located directly to the left of the back stairs
was unguarded; she had lived in the house for over 10
years and, after moving out, had returned to visit at least
twice a year. The existence of the State building code
mandate together with notice to defendant of the exist-
ence of the proximity of the window to the stairs was all
the proof needed for plaintiff to establish a prima facie
case. Therefore, under the facts in this case, defendant
could properly be held liable for injuries resulting from
the unprotected window (see, Polipo v Sanders, supra, at
257; Parsons v City of New York, supra, at 284).
[*701] Next, we reject defendant's contention that
Supreme Court improperly instructed the jury with re-
gard to the State building code. During defense counsel's
opening statement, the court, in response to an objection
raised by plaintiff's counsel, stated: "Ignorance of the law
is no excuse. ... We are all aware of the statute in the
state. That is the law." During its jury charge, the court
instructed: "If you find that the defendant violated the
code by not protecting the window, you [***5] may con-
sider the violation as some evidence of negligence, along
with the other evidence in the case provided that such vi-
olation was a substantial factor in bringing about the oc-
currence." Because ignorance of the law does not excuse
one from liability (see, National Conversion Corp. v Ce-
dar Bldg. Corp., supra, at 628) and a violation of the
building code can be considered as [**339] some evid-
ence of negligence (see, Clo v McDermott, 239 AD2d 4,
6), the court's instructions to the jury were proper.
We also conclude that there was sufficient evidence
presented at the trial to support the jury's verdict. [HN3]
A jury verdict in favor of the plaintiff will not be set
aside unless " 'the evidence so preponderated in favor of
the [defendant] that the verdict could not have been
reached on any fair interpretation of the evidence' " (
Moxley v Givens, 255 AD2d 632, 633 quoting Petrivelli
v Walz, 227 AD2d 735). Here, it is undisputed that de-
fendant owned the house and, thus, exercised the man-
dated control over the premises (see, Warren v Wilmor-
ite, Inc., 211 AD2d 904, 905). It is also undisputed that
[***6] defendant hired a contractor to repair the stairs
and, after the stairs were repaired, the adjacent window
continued to be unprotected. Plaintiff's expert testified
that the unguarded window was in violation of the build-
ing code and that, although not a violation of any build-
ing code, the handrail on the stairs, which was located on
the opposite side of the window, did not meet recognized
national standards. The evidence of the building code vi-
olation, alone, served as some evidence of negligence on
the part of defendant (see, Clo v McDermott, supra, at
6). Also, the jury could fairly conclude that the absence
of any such protection or guard was a proximate cause of
 Page 97

plaintiff's injuries in that such injuries were sustained as
a result of plaintiff's arm going through the window and
that defendant had notice of the conditions of the stairs
and the area surrounding the stairs. In our view, there
was ample credible evidence presented at trial to support
a determination that a dangerous condition existed and
defendant had the required notice of that condition (see,
Pulley v McNeal, 240 AD2d 913; Walsh v City School
Dist., 237 AD2d 811; [***7] Warren v Wilmorite, Inc.,
supra).
We have considered defendant's remaining conten-
tions and find them to be without merit.
[*702] Mikoll, J. P., Crew III, Peters and Graffeo,
JJ., concur.
Ordered that the judgment is affirmed, with costs.

38 of 55 DOCUMENTS

Divito v. Goodfellas Brick Oven Pizza

102674/2006

SUPREME COURT OF NEW YORK, RICHMOND COUNTY

2008 N.Y. Misc. LEXIS 279; 239 N.Y.L.J. 12

January 7, 2008, Decided

CASE SUMMARY: tenant.

OUTCOME: The owner's and the tenant's motions for

PROCEDURAL POSTURE: Defendants, an owner and
a tenant, separately moved for summary judgment dis-
missing plaintiff police officer's personal injury com-
plaint and all cross-claims.
OVERVIEW: While responding to an activated burglar
alarm at the owner's and the tenant's premises, the police
officer slipped on an "oily or greasy" substance in the
basement that caused him to sustain injuries. The appel-
late court found, inter alia, that the police officer failed to
establish that the owner and the tenant caused or created
the alleged condition or had notice of the condition for a
sufficient period of time to remedy it. However, the of-
ficer successfully raised a triable issue of fact regarding,
inter alia, whether the owner and the tenant failed to ad-
equately light the basement and keep corridors free from
debris, as required by Administrative Code of the City of
NY §§ 27-381, 27-369, and that such violation had a
reasonable causal connection to his injuries. Therefore,
the owner and the tenant were not entitled to summary
judgment on those aspects of the officer's General Muni-
cipal Law § 205-e claim. The owner was entitled to sum-
mary judgment on the issue of indemnification pursuant
to the lease agreement insofar as incurred in the defense
of the action against the officer, but not those incurred in
pursuing the cross-claim for indemnification against the
summary judgment were denied insofar as they failed to
keep the basement lit and clean; their motions were oth-
erwise granted. The owner's motion for attorney's fees
was granted to the extent of his defense of the main ac-
tion against the officer.
CORE TERMS: attorneys fees, summary judgment, in-
demnification, notice, negligence claims, cause of action,
basement, attorneys fees, common law, cross claims,
prima facie, causal connection, main action, entitlement,
police officers, issue of fact, safe condition, private right
of action, statutory violations, aforementioned, undis-
puted, common-law, curbstone, indemnify, sidewalk,
flagging, slipped, orridors, triable, pursuit
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN1] See Administrative Code of the City of NY § 27-
127.
Torts > Premises Liability & Property > General

Premises Liability > General Overview
[HN2] See Administrative Code of the City of NY § 27-
128.
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN3] See Administrative Code of the City of NY § 27-
369.
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN4] See Administrative Code of the City of NY § 27-
381.
Torts > Premises Liability & Property > General
Premises Liability > General Overview
[HN5] New York City Health Code § 153.19(a) provides,
in part, that an 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, the air shafts,
areaways, backyards, courts, and alleys, or lot clean and
free from garbage, refuse, rubbish, litter, or other offens-
ive matter or accumulation of water.
Torts > Premises Liability & Property > General
Premises Liability > Duties of Care > Duty on Premises
> General Overview
[HN6] An owner of real property has a duty to maintain
the property in a reasonably safe condition.
Torts > Negligence > Proof > Burdens of Proof
Torts > Premises Liability & Property > General
Premises Liability > Dangerous Conditions > General
Overview
[HN7] In order to establish a prima facie case of negli-
gence, a plaintiff must prove that the defendant either
created a dangerous condition, or had notice of the con-
dition, and had a reasonable time to remedy the situation.
Torts > Negligence > Actions > General Overview
[HN8] General Municipal Law § 205-e provides a
private right of action for police officers injured in the
line of duty by the negligence of other parties. This
private right of action requires the plaintiff to demon-
strate the violation of a relevant statute, ordinance, or
regulation, and to establish a practical or reasonable con-
Page 98
nection between the violation and the injury of the police
officer.
Torts > Negligence > Actions > General Overview
Torts > Negligence > Proof > Burdens of Proof
[HN9] A police officer, in proving negligence in accord-
ance with General Municipal Law § 205-e, is not re-
quired to display proof of such notice as would be re-
quired under a common-law theory of negligence;
however, the notion that notice of a violation is not a re-
quisite element of a cause of action under the statute is
an overstatement. Notice is clearly material to recovery
under the statute. Therefore, the officer still needs to sub-
mit proof of a causal connection, direct or indirect,
between the defendant's alleged statutory violations and
the officer's injury.
Torts > Damages > Costs & Attorney Fees > General
Overview
Torts > Procedure > Multiple Defendants > Indemnity
> Contractual Indemnity
[HN10] Parties are generally responsible for their own
attorneys fees, to the extent not provided elsewhere, and
the pursuit of indemnification is no exception. However,
where indemnification for attorney's fees is provided for,
the potential indemnitee is entitled only to recover attor-
neys fees incurred in the defense of the main action and
shall not recover any fees that were incurred in the pur-
suit of indemnification.
COUNSEL: [*1] Plaintiff's attorneys are Decolator, Co-
hen & Diprisco, Garden City, NY.
Defense attorneys are Faust, Goetz, Schenker &. Blee,
NY, NY and Gannon, Rosenfarb & Moskowitz, NY, NY.
JUDGES: Justice McMahon
OPINION BY: McMahon
OPINION
On June 12, 2006, the plaintiff allegedly sustained
injuries when, acting in his capacity as a New York City
Police Officer, he slipped and fell in the basement of de-
fendant Goodfellas Brick Oven Pizza (hereinafter Good-
fellas), located at 1718 Hylan Boulevard, Staten Island,
New York. It is undisputed that at the time of the acci-
dent the plaintiff was responding to an activated burglar
alarm at the defendant's premises. Upon arrival, the
plaintiff began to inspect the premises and while in the
basement he slipped on an "oily or greasy" substance
causing him to sustain injuries. At the time of the acci-

dent, defendant Hsiung Ye Realty Corporation (herein-
after Hsiung Ye) was the owner of the premises and de-
fendants Goodfellas was the tenant and operated an
Italian restaurant at the site. Plaintiff commenced this ac-
tion on or about September 1, 2006, pursuant to General
Municipal Law § 205-e alleging violations of New York
City Administrative Code §§ 27-127,1 27-128,2 27-369,3
27-3814 and Section 153.195 [*2] of the New York City
Health Code and common law negligence. Issue was
joined in or around September 22, 2006. At present, de-
fendants Hsiung Ye and Goodfellas are separately mov-
ing for summary judgment dismissing the complaint and
all cross claims.
1 New York City Administrative Code § 27-127
provides that [HN1] "[a]ll buildings and all parts
thereof shall maintained in the 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".
2 New York City Administrative Code § 27-128
provides that [HN2] "[t]he owner shall be re-
sponsible at all times for the safe maintenance of
the building and its facilities".
3 New York City Administrative Code § 27-369
provides, in relevant part, that [HN3] "[c]orridors
shall be kept readily accessible and unobstructed
at all times"
4 New York City Administrative Code § 27-381
provides, in relevant part, that [HN4] "[c]orridors
and exits shall be provided with artificial lighting
facilities".
5 [HN5] New York City Health Code §
153.19(a) provides, in [*3] relevant part, [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, flag-
ging and curbstone, the air shafts, areaways,
backyards, courts and alleys, or lot clean and free
from garbage, refuse, rubbish, litter, or other of-
fensive matter or accumulation of water".
I. Summary Judgment
a. Common Law Negligence Claims
It is well settled that [HN6] "an owner of real prop-
erty has a duty to maintain the property in a reasonably
safe condition" (see Basso v. Miller, 40 NY2d 233, 241,
352 N.E.2d 868, 386 N.Y.S.2d 564 [1976]). [HN7] In or-
Page 99
der to establish a prima facie case of negligence the
plaintiff must prove that the defendant either created the
condition, or had notice of the condition and had a reas-
onable time to remedy the situation (Gonzalez v. Jenel
Management Corp., 11 AD3d 656, 656, 784 N.Y.S.2d 135
[2d Dept. 2004]; see Finocchiaro v. AVR Realty Corp.,
32 AD3d 819, 819, 820 N.Y.S.2d 520 [2d Dept 2006]). In
opposition to the defendant's prima facie showing of en-
titlement to summary judgment on plaintiff's common
law negligence claims, the plaintiff [*4] has failed to
present a triable issue of fact. The plaintiff has failed to
establish that defendant caused or created the alleged
condition or had notice of the condition for a sufficient
period of time to remedy it (see Brown v. Outback Steak-
house, 39 AD3d 450, 833 N.Y.S.2d 222 [2d Dept. 2007]).
b. General Municipal Law § 205-e Claims
[HN8] General Municipal Law § 205-e provides a
private right of action for police officers injured in the
line of duty by the negligence of other parties (see Ra-
binowitz v. City of New York, 286 AD2d 724, 724-25, 730
N.Y.S.2d 454 [2d Dept., 2001]). This private right of ac-
tion requires the plaintiff to demonstrate the violation of
a relevant statute, ordinance, or regulation, and to "estab-
lish a practical or reasonable connection between the vi-
olation and the injury of the police officer" (Campbell v.
City of New York, 31 AD3d 594, 595, 819 N.Y.S.2d 294
[2d Dept., 2006][emphasis added]; Fahey v. Serota, 23
AD3d 335, 806 N.Y.S.2d 70 [2d Dept., 2005]; Sconzo v.
EMO Trans, Inc., 295 AD2d 493, 494, 744 N.Y.S.2d 471
[2d Dept., 2002]).
[HN9] The plaintiff, in proving negligence in ac-
cordance with General Municipal Law § 205-e, is not re-
quired to display "proof of such notice as would be re-
quired under a commonlaw theory of negligence" (An-
thony v. New York City Transit Auth., 38 AD3d 484, 486,
832 N.Y.S.2d 63 [2d Dept. 2007]), [*5] however, the no-
tion "that notice of a violation is not a requisite element
of a cause of action under [the statute] is...an overstate-
ment. Notice is clearly material to recovery under the
statute" (Lusenskas v. Axelrod, 183 AD2d 244, 248, 592
N.Y.S.2d 685 [1st Dept., 1992]). Therefore, the plaintiff
still needs to submit proof of a "causal connection, direct
or indirect, between the defendant's alleged statutory vi-
olations and the plaintiff's injury" (Fahey v. Serota, 23
AD3d at 336; Rabinowitz v. City of New York, 286 AD2d
at 724).
Initially, the Court notes that New York City Health
Code § 153.19 regulates outdoor areas and is inapplic-
able in the instant matter (see D'Arpa v. New York City
Transit Auth., 239 AD2d 126, 656 N.Y.S.2d 638 [1st
Dept., 1997]). Further, the alleged violations of New
York City Administrative Code § 27-127 and 27-128 are
inapplicable as well, as such code provisions deal with

structural/design defects, which are not part of the instant
allegations (see Marsillo v. City of New York, 17 Misc.3d
612, 844 N.Y.S.2d 673 [Sup. Ct., 2007] [Aliotta, J.]).
Therefore, summary judgment is appropriate on the
causes of action alleged referencing the aforementioned
violations.
Further, the defendants have established a prima
facie [*6] entitlement to summary judgment by demon-
strating that there was no reasonable causal connection
between the alleged statutory violations of §§ 27-369 and
27-381 of the NYC Administrative Code and plaintiff's
injuries (see Fahey v. Serota, 23 AD3d at 336). In oppos-
ition, the plaintiff has successfully raised a triable issue
of fact regarding, inter alia, whether the defendants fail-
ure to adequately light the basement (NYC Admin. Code
§ 27-381) and keep corridors free from debris (NYC Ad-
min. Code § 27-369) had a reasonable causal connection
to plaintiff's injuries (Campbell v. City of New York, 31
AD3d 594, 595, 819 N.Y.S.2d 294 [2d Dept. 2006]).
Therefore, considering "the plaintiff is entitled, at this
stage of the proceedings, to every reasonable inference
that can be drawn from the testimony" summary judg-
ment is inappropriate (Brown v. Outback Steakhouse, 39
AD3d 450, 451, 833 N.Y.S.2d 222 [2d Dept. 2007]).
II. Attorneys' Fees
It is undisputed that defendant Hsiung Ye, as owner
of the aforementioned premises was named as an addi-
tional insured on codefendant Goodfellas insurance
policy with limits of $ 1,000,000 per person; $ 2,000,000
per accident. Upon receipt of correspondence from coun-
sel for defendant Hsiung Ye, [*7] Goodfellas insurance
company Utica First Insurance Company (hereinafter
"Utica First") acknowledged indemnification was appro-
priate and attempted to take over the defense. Utica First
thereafter sent a confirmatory letter, dated June 18, 2007,
which Hsiung Ye's attorneys rejected on the grounds that
Utica First did not "state that the acceptance of our
tender and defense of our client is without reservation
[and] [f]urther, your correspondence is silent as to ac-
ceptance of our tender of all costs incurred by my client".
Goodfellas/ Utica First again contacted Hsiung Ye, by
letter dated August 21, 2007, to reiterate it's willingness
to indemnify but noted its objection to payment of any
attorneys fees. In response, Hsiung Ye acknowledged the
indemnification however, instructed co-defendant that it
moved for summary judgment regarding payment of its
attorney's fees. To date, Goodfellas/Utica First has not
taken over defense of Hsiung Ye and objects to payment
of the attorneys fees incurred in its defense of the action.
At present, Goodfellas and Hsiung Ye each move for
summary judgment on the issue of attorney's fees.
Defendant Hsiung Ye has established his prima facie
Page 100
entitlement to [*8] summary judgment on the issue of
indemnification (Winegrad v. N.Y. Univ. Med. Ctr., 64
NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316
[1985]). The lease between the parties provides that the
"[t]enant shall indemnify and hold
Landlord harmless from and against any
and all liability, claim, loss, damage or ex-
pense, including reasonable attorney's
fees, by reason of any injury to or death of
any person or persons, or injury to dam-
age to property, or otherwise, arising from
or in connection with the occupancy or
use of the demised premises (or basement
space)".
Further, the parties do not contest, and Goodfellas has re-
peatedly expressed, the fact that Hsiung Ye was entitled
to be indemnified pursuant to the lease agreement.
With respect to the attorneys fees, courts have long
held that [HN10] parties are generally responsible for
their own attorneys fees, to the extent not provided else-
where, and the pursuit of indemnification is no exception
(Chapel v. Mitchell, 84 NY2d at 349, 642 N.E.2d 1082,
618 N.Y.S.2d 626; Perez v. Spring Creek Assoc., 283 AD
2d at 627, 725 N.Y.S.2d 875]. However, where indemni-
fication for attorney's fees is provided for, the potential
indemnitee is entitled only to recover attorneys fees in-
curred in the defense of the main action and shall not re-
cover any [*9] fees that were incurred in the pursuit of
indemnification (Chapel v. Mitchell, 84 NY2d 345, 349,
642 N.E.2d 1082, 618 N.Y.S.2d 626 [1994]; Roddy v.
Nederlander Producing Company of Am., Inc., 44 AD3d
556, 557, 844 N.Y.S.2d 231 [1st Dept., 2007]; Spring-
stead v. Ciba-Geigy Corp., 27 AD3d 720, 722, 815
N.Y.S.2d 624 [2d Dept. 2006]; Yacovacci v. Shoprite Su-
permarket Inc., 24 AD3d 539, 540, 808 N.Y.S.2d 284 [2d
Dept., 2005]; Perez v. Spring Creek Assoc., 283 AD2d
626, 627, 725 N.Y.S.2d 875 [2d Dept., 2001]; Ehrlich,
Julian D., Outside Counsel, Recovering Attorney's Fees
in Construction-Site Cases, NYLJ, May 25, 2007, at 4,
col. 4).
As a result, Hsiung Ye's attorneys are awarded attor-
neys fees incurred in their defense of the action against
the plaintiff. No attorney fees incurred in pursuing the
cross claim for indemnification against defendant Good-
fellas will be recovered. For determination of the amount
and reasonableness of attorneys fees incurred by Hsiung
Ye's attorneys in the defense of the main action, the
Court will refer this issue alone to JHO Ajello to hear
and determine.
Accordingly, it is
 Page 101

ORDERED that the defendant Hsiung Ye's motion
for summary judgment is hereby granted to the extent
that the plaintiff's causes of action for common-law neg-
ligence, General Municipal Law § 205-e claims [*10]
that allege violations of NYC Administrative Code §§ 27-
127, 27-128 and Section 153.19 of NYC Health Code,
are hereby dismissed, and it is further,
ORDERED that defendant Hsiung Ye's motion for
summary judgment on attorneys fees is hereby granted to
the extent that the defendant is entitled to be awarded at-
torneys fees that were incurred in his defense of the main
action against plaintiff and no attorneys fees are to be
awarded on the cross claim of indemnification, and it is
further
ORDERED that the defendant Hsiung Ye's motion
for summary judgment on all remaining claims is hereby
denied, and it is further
ORDERED that the defendant Goodfellas' motion
for summary judgment is granted to the extent that the
plaintiff's causes of action for common-law negligence,
General Municipal Law §205-e claims that allege viola-
tions of NYC Administrative Code §§ 27-127, 27-128 and
Section 153.19 of NYC Health Code are hereby dis-
missed, and it is further
ORDERED that the defendant Goodfellas' motion
for summary judgment on all remaining claims is hereby
denied, and it is further
ORDERED that the defendants report to JHO Ajello
to determine the amount and reasonableness of attorneys
fees that are appropriate [*11] in accordance with this
decision, and it is further
ORDERED that defendant Goodfellas take over the
defense of Hsiung Ye Realty Corporation for the re-
mainder of this action, and it is further
ORDERED that all parties are to appear before this
Court on January 16, 2008 for pre-trial conference.
THIS IS THE DECISION AND ORDER OF THE
COURT.

39 of 55 DOCUMENTS

[*1] Ellie Grace O'Neill, Don O'Neill and Sandra O'Neill, Plaintiffs, against Ithaca
College, Defendant. Ithaca College, Third-Party Plaintiff, Dustin Adams, Ethan Ca-
pone, Simon Fokard, Michael Gordon, Michael Connell, Tallman & Demarest Archi-
tects, LLP, Robert B. Tallman, Tetra Tech Engineers, Architects & Landscape Archi-
tects, P.C., Third-Party Defendants.

2006-0791

SUPREME COURT OF NEW YORK, TOMPKINS COUNTY

2007 NY Slip Op 52506U; 18 Misc. 3d 1113A; 856 N.Y.S.2d 500; 2007 N.Y. Misc. LEX-
IS 8633

December 19, 2007, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND nishing, under-aged

WILL NOT BE PUBLISHED IN THE PRINTED OFFI-
CIAL REPORTS HEADNOTES
[**1113A] [***500] Intoxicating Liquors--Dram
CORE TERMS: alcohol, roommate, intoxication, apart-
Shop Act. General Obligations Law--§ 11-100 (Com-
ment, summary judgment, intoxicated, guests, beer,
pensation for injury or damage caused by intoxication of
drinking, Dram Shop Act, comparative negligence, fra-
person under age 21 years).
ternity's, unlawfully, procuring, landlord, balcony, under-
age drinking, duty of care, incurring liability, indispens-
COUNSEL: Ciano J. Lama, Esq., THE LAMA LAW
able, tortfeasor, common-law, beverage, furnish, injured
FIRM, LLP, Attorneys for Third Party Defendant, Tall-
person, questions of fact, consumption, foreseeable, fur-
man and Demarest, Utica, New York.

Edward S. Leone, Esq., CHERUNDOLO, BOTTAR &
LEONE, PC, Attorneys for Plaintiffs O'Neil, Syracuse,
New York.
James G. Stevens, Jr., Esq., SUGARMAN LAW FIRM,
LLP, Attorneys for Third-Party Defendants, Tetra Tech
Engineers and Architects & Landscape Architects, P.C.,
Syracuse, New York.
Thomas R. Smith, Esq., BOND, SCHOENECK &
KING, PLLC, Attorneys for Defendant/Third-Party,
Plaintiff Ithaca College, Syracuse, New York.
Frank Bersani, Jr., Esq., Attorney for Third-Party, De-
fendant Dustin Adams, Syracuse, New York.
Adam C. Ferrandino, Esq., FELDMAN, KIEFFER &
HERMAN, LLP, Attorneys for Third-Party, Defendant
Simon Folkard, Buffalo, New York.
Donald J. Lambiase, Esq., MURPHY & LAMBIASE,
Attorneys for Third-Party, Defendant Michael O'Connell,
Goshen, New York.
Edward M. Eustace, Esq., EUSTACE & MARQUEZ, At-
torneys for Third-Party, Defendant Michael Gordon,
White Plains, New York.
Patricia Cummings, Esq., Leonard & Cummings, LLP,
Attorney for Third Party, Defendant Ethan C. Capone,
Binghamton, New York.
WILLIAMSON, CLUNE & STEVENS, Robert J. Clune,
Esq., Attorney for Estate of Tallman, Ithaca, NY.
JUDGES: Hon. Elizabeth A. Garry.
OPINION BY: Elizabeth A. Garry
OPINION
Elizabeth A Garry, J.
In this premises liability action, Plaintiffs seek dam-
ages from Defendant Ithaca College for personal injuries
sustained by Plaintiff Ellie Grace O'Neill (hereinafter re-
ferred to as Plaintiff) in a fall on Defendant's campus.
Defendant's Answer raises affirmative defenses of com-
parative negligence on the part of Plaintiff and unnamed
others. (O'Connell Motion Exh. B). Its Third-Party Com-
plaint seeks contribution under CPLR Article 14 from,
among others, Third-Party Defendants Michael O'Con-
nell and Dustin Adams on theories of liability under
General Obligations Law § 11-100 and common law
negligence. O'Connell and Adams now move separately
Page 102
for summary judgment dismissing the Third-Party Com-
plaint as against them. Defendant opposes the motion.
Plaintiffs, Defendant, Third Party Defendant O'Connell,
and Third Party Defendant Adams appeared by Counsel
for oral argument on September 14, 2007.
Factual and Procedural History
Plaintiff was a 19-year-old sophomore at Ithaca Col-
lege on October 22, 2004, when she [*2] was severely
injured in a fall from a third-floor fire escape or balcony
(hereinafter balcony). The balcony was located outside a
student apartment in a residential building on Defend-
ant's campus. In the primary action, Plaintiff and her par-
ents allege that the balcony's inadequate railings consti-
tuted a dangerous condition that caused her fall. (O'Con-
nell Motion Exh. A.)
At the time of her accident, Plaintiff was visiting the
apartment to attend a surprise twenty-first birthday party
for Third-Party Defendant Simon Folkard, one of five
student roommates who shared the apartment. The other
roommates, all of whom are Third-Party Defendants,
were Adams, O'Connell, Ethan Capone, and Michael
Gordon. Defendant's Third-Party Complaint seeks contri-
bution from the roommates on the theory that Plaintiff's
accident was caused, in whole or in part, by intoxication
resulting from her alleged consumption of alcoholic
beverages during the party. (O'Connell Motion Exh. C.)
In an affidavit supporting his summary judgment
motion, Third Party Defendant O'Connell alleges that he
did not have anything to do with planning the party, that
he first learned about the party approximately a week be-
fore it was held, and that his only involvement in prepar-
ing or hosting the party was to go out with Folkard and
other roommates in an attempt to keep Folkard away
from the apartment while others made preparations for
the party. O'Connell alleges that he did not purchase any
alcohol for consumption at the party, contribute any
funds for its purchase, or serve alcohol to anyone who at-
tended, and that none of the alcohol that was allegedly
served at the party belonged to him. He asserts that he
did not invite any guests to the party or know who was
being invited, that he was not aware that anyone under
21 had been invited or was present, and that he was not
aware that anyone at the party was intoxicated or that
any minors were drinking alcohol. He allegedly did not
know Plaintiff before the accident, did not know she was
at the party, did not know her age, did not witness her ac-
cident, and first learned that it had happened when one of
the other roommates came back into the apartment from
the balcony and told him that someone had fallen. (O'-
Connell Affidavit sworn to on August 23, 2007.) Defend-
ant alleges that O'Connell's deposition testimony shows
that he helped plan the party by assisting in keeping

Folkard out of the apartment, that he knew there would
be alcohol at the party and that it would be attended by
people under the age of 21, including some of his room-
mates, and that during the party he did not attempt to as-
certain the ages of the guests or to prevent people under
the age of 21 from drinking. (O'Connell Motion Exh. K,
pp. 24-25, 34-36.)
Third Party Defendant Adams was deposed on June
15, 2006 (Defendant's Exh. C) and again on February 8,
2007 (Adams Motion Exh. C.) He alleges that the party
was planned by Folkard's sister Christina and possibly by
some of Christina's roommates. He testified that before
the party, he had discussions with Christina regarding her
plans to decorate the apartment and provide food, but
that he did not remember any discussions regarding alco-
hol. (Adams Motion Exh. C, p. 23-24.) A day or two be-
fore the party, Adams drove his roommate Michael Gor-
don to a liquor store where Gordon, who was over 21,
purchased about a case of beer, a bottle of Jagermeister,
and unspecified amounts of wine and rum. (Adams Mo-
tion Exh. C., pp. 27-30.) Adams did not enter the store
and did not contribute any of his own funds to the pur-
chase. (Defendant's Exh. C, p. 39.) When Adams was
asked whether Gordon purchased the alcohol for the
party, he responded, "Yes," (Defendant's Exh. C, p. 38-
39), but he also testified that it was his understanding
that Gordon purchased the alcohol for the general use of
the five roommates and that the alcohol was not intended
to be freely available at the party. (Adams Motion Exh.
C., [*3] p. 33; Defendant's Exh. C, p. 48-49.) Before the
party, the alcohol that Gordon purchased was stored in
the apartment refrigerator, where Folkard and the other
roommates had access to it. (Adams Motion Exh. C., pp.
29-30.) Adams testified that the alcohol Gordon pur-
chased was not the only alcohol at the party, that some
attendees brought their own alcohol, and that guests got
their own drinks. (Defendant's Exh. C. p. 49-50.)
Adams had known Plaintiff for a month and a half or
two months before the accident happened. He was two
years ahead of her in school and had helped her with
some of her course work. (Adams Motion Exh. C., pp.
23, 31.) During the party, Adams saw Plaintiff for about
ten minutes and had a conversation with her that lasted a
minute or two. (Defendant's Exh. C., p. 28). Adams saw
Plaintiff drink a shot of the Jagermeister that Gordon had
purchased, and at another time he saw her holding a cup,
although he did not know what was in it. (Defendant's
Exh. C, p. 50-51.) Adams testified that he was also drink-
ing Jagermeister but that he did not pour Plaintiff's Jager-
meister or serve alcohol to anyone at the party at any
time. (Defendant's Exh. C. p. 49). Adams described
Plaintiff as "perhaps a little tipsy" and somewhat more
"outgoing and direct" than she normally was during the
party, but he stated that she was normally an energetic
Page 103
and outgoing person and that she did not appear to him to
be intoxicated. (Defendant's Exh. C, pp. 29-30; Adams
Motion Exh. C., pp. 11-13). He did not witness Plaintiff's
accident.
Legal Analysis
New York General Obligations Law § 11-100
provides as follows:
Any person who shall be injured in per-
son, property, means of support or other-
wise, by reason of the intoxication or
impairment of ability of any person under
the age of twenty-one years, whether res-
ulting in his death or not, shall have a
right of action to recover actual damages
against any person who knowingly causes
such intoxication or impairment of ability
by unlawfully furnishing to or unlawfully
assisting in procuring alcoholic beverages
for such person with knowledge or reas-
onable cause to believe that such person
was under the age of twenty-one years.
Defendant contends that material questions of fact
exist as to whether the Third Party Defendants unlaw-
fully furnished or assisted in procuring the alcoholic
beverages that Plaintiff allegedly consumed at the party,
thereby causing her to become intoxicated. 1 Therefore,
Defendant contends, if it is held liable to Plaintiff in the
primary action, it will be "injured" within the meaning of
§ 11-100 and may seek contribution from them in pro-
portion to their relative culpability.
1 Whether Plaintiff was intoxicated when she
fell and, if so, the degree of her intoxication are
unresolved questions of fact. This court's examin-
ation of the potential legal implications of her al-
leged intoxication in resolving these motions
does not imply in any way that these questions
have been or could be resolved at this stage of the
litigation.
Initially, the two Movants contend that contribution
is not available to Defendant under § 11-100. They point
out that the statute does not permit Plaintiff to maintain a
cause of action in her own favor by reason of her own in-
toxication (Searley v. Wegman's Food Markets, 24 AD3d
[*4] 1202, 807 N.Y.S.2d 768 [4th Dep't 2005]; Sheehy v.
Big Flats Community Day, 73 NY2d 629, 541 N.E.2d 18,
543 N.Y.S.2d 18 [1989]) and that her infancy does not
provide her with an exception. (Searley, supra; Livelli v.
Teakettle Steak House, 212 AD2d 513, 622 N.Y.S.2d 109

[2d Dep't 1995]). Movants contend that principles of
comparative negligence will adequately protect Defend-
ant from being cast in liability for their conduct because,
if a jury eventually determines that Plaintiff's accident
was caused in part by her alleged intoxication and in part
by a defective condition on Defendant's campus, the op-
eration of comparative negligence should ensure that De-
fendant will be held liable only to the extent that the de-
fective condition on its property, and not the intoxication,
caused the injury. Thus, Movants contend that permitting
Defendant to raise this claim for contribution along with
its affirmative defense of comparative negligence consti-
tutes a form of "double-dipping" in which Defendant is
attempting to reduce its liability twice based on the
single factor of Plaintiff's alleged intoxication.
The court in Woodbeck v. Caputo, et al, 131 Misc 2d
321, 326, 500 N.Y.S.2d 481 [Supreme Court, Saratoga
County 1986], followed a similar line of reasoning when
it refused to "extend the law of contribution" to include a
third-party claim filed under the Dram Shop Act, Gener-
al Obligations Law § 11-101, by the owner and operator
of a truck that collided with a bicyclist against a restaur-
ant that had allegedly served alcohol to the bicyclist. The
Woodbeck court noted that "it is conceivable (though
never recently so held) that being cast in damages is in-
deed an injury' within the meaning of the Dram Shop Act
upon which defendants, third-party plaintiffs may sue."
(Woodbeck at 323.) Without so holding, however, the
court dismissed the third-party claim, finding that prin-
ciples of comparative negligence adequately protected
the interests of the truck's owner and operator in the bi-
cyclist's negligence action against them.
In the 21 years since Woodbeck was decided,
however, no other court appears to have reached a simil-
ar conclusion. Generally, tortfeasors who are subject to
liability for the same injury may seek contribution
among themselves even though the theory on which con-
tribution is sought differs from the theory asserted by the
plaintiff. (Alexander, Practice Commentaries, McKin-
ney's Cons Laws of NY, Book 7B, CPLR C1401:2.) The
same principle holds true for a negligent tortfeasor who
seeks contribution from another tortfeasor for an alleged
violation of the Dram Shop Act. (Johnson v. Plotkin, 172
AD2d 88, 577 N.Y.S.2d 329 [3d Dep't 1991]).
In Strassner v. Saleem, 156 Misc 2d 768, 594
N.Y.S.2d 559 (Monroe County Supreme Court 1993), an
intoxicated minor left a party where he had been drink-
ing, crossed a street, and was struck by the defendant's
vehicle. The court permitted the defendant's third-party
claim under General Obligations Law § 11-100 against
the homeowner who hosted the party, saying:
While General Obligations Law § 11-
Page 104
100 did not create a cause of action in fa-
vor of the intoxicated recipient of the
beverage, regardless, the statute does al-
low for finding an independent obligation
owed by the third-party defendant, to pre-
vent foreseeable harm to the defendants,
including their potential liability to the
plaintiff. (Id. at 771.)
More recently, a defendant's ability to seek contribu-
tion under the Dram Shop Act was upheld on facts simil-
ar to those presented in the current action. In Tratt v
Washington Building Mgt. Co., 15 Misc 3d 1136A, 841
N.Y.S.2d 824 (Sup Ct Broome County 2007), an allegedly
intoxicated 20-year-old student fell from a stair landing
in a rented fraternity house. His premises liability action
against the landlord asserted that inadequate railings
caused the fall. The landlord filed a [*5] third-party ac-
tion for contribution under Gen. Obs. Law §§ 11-100,
-101 against two taverns. The court did not directly ad-
dress the interaction between contribution and comparat-
ive negligence. Instead, citing Johnson, supra, it rejected
the taverns' claim that the Dram Shop Act was meant to
protect the traveling public rather than to provide an off-
set for money damages. It held that even though the al-
legedly intoxicated student was not an "innocent party"
like the passenger plaintiffs in Johnson, supra, "to pro-
hibit [the landlord] from pursuing the taverns would
deny [it] the right of contribution against potential tort-
feasors under the Dram Shop Act." (Id. at 1136[A].)
Thus, while Defendant plainly may not "double-dip"
by reducing its liability twice as discussed above, it has
the right to show, if it can, that some or all of any liabil-
ity it may ultimately incur towards Plaintiff results from
violations of § 11-100. To survive the current summary
judgment motion as to O'Connell and Adams, it must
show that questions of fact exist as to whether their con-
duct constituted "furnishing" or "procuring" alcohol to
the Plaintiff within the meaning of that provision.
Defendant does not suggest that either O'Connell or
Adams actually purchased the alcohol allegedly con-
sumed by Plaintiff or poured it for her. However, the
Court of Appeals has held that to limit the meaning of the
term "furnishing" "to those who hand the alcohol to the
minor--gives the term an overly narrow reach that under-
mines the clear legislative goal" of deterring underage
drinking. (Rust v. Reyer, 91 NY2d 355, 360, 693 N.E.2d
1074, 670 N.Y.S.2d 822 [1998]). In that case, Reyer, a
17-year-old minor, planned a party at her home in her
parents' absence and agreed to permit a high school fra-
ternity to sell beer at the party in exchange for payment
of a share of the proceeds. Reyer provided storage for the

fraternity's beer kegs before the party, attempted to ar-
range free beer for her friends, and saw many of her un-
der-aged guests consuming the fraternity's beer. An es-
timated 150 minors attended the party, and one of them
became inebriated and struck the plaintiff. Although
Reyer neither drank nor dispensed the beer herself, the
Court of Appeals reversed the dismissal of a claim
against her under 11-100, noting that the beer could not
have been served without her advance permission and
that her plan to share in the fraternity's profits "under-
score[d] her complete complicity in the fraternity's plans
to furnish beer." (Id. at 359). In the Court's words, Reyer
was not an "unknowing bystander . . . an innocent dupe .
. . or a passive participant who merely knew of the un-
derage drinking and did nothing to discourage it . . .
[She] played an indispensable role in the scheme to make
the alcohol available to the underage party guests." (Id.
at 361).
The allegations against O'Connell do not approach
this standard. O'Connell's active role in preparing for the
party did not involve alcohol in any way, but was instead
limited to helping to protect the surprise by keeping
Folkard away. Even in that limited role, he was not "in-
dispensable," since several of the roommates shared the
job. At the most, he permitted the party to take place in
the shared apartment, knew that alcohol that belonged, in
part, to him as a roommate would be served at the party,
knew that some guests would be under-aged, and did not
attempt to determine which guests were under-aged or to
prevent them from drinking. These are not the actions of
one who is actively complicit in a scheme to furnish al-
cohol to minors, but instead those of a "passive parti-
cipant who merely [knows] of underage drinking and
[does] nothing to discourage it" as in Rust. Unlike Reyer,
who entered into a plan to profit financially from a
scheme to sell alcohol to underaged guests, there is no
evidence suggesting that O'Connell [*6] played an in-
dispensable role or was "completely complicit" in any
plan to furnish alcohol to minors. O'Connell is therefore
entitled to summary judgment in his favor on Defend-
ant's contribution claim under § 11-100. (See Lane v.
Barker, 241 AD2d 739, 660 N.Y.S.2d 194 [3d Dep't
1997]). The facts regarding Adams' participation are less
clear. Unlike O'Connell, Adams knew Plaintiff, knew her
age, saw her at the party drinking alcohol that Gordon
had purchased, spoke with her, and believed her to be, at
least, "tipsy." By driving Gordon to the liquor store, he
provided at least some assistance in purchasing alcohol
that was, in fact, consumed by Plaintiff. There are mater-
ial issues of fact as to whether the alcohol was intended
for the party or for the roommates' personal use; whether
in providing transportation, Adams intended to particip-
ate in a plan to make alcohol available to minors at the
party; whether Adams' personal familiarity with
Page 105
Plaintiff's age and her consumption of alcohol that he as-
sisted in purchasing made him more than a "passive par-
ticipant" in the availability of alcohol to minors in the
apartment; and thus, whether he furnished or unlawfully
assisted in procuring alcohol within the meaning of § 11-
100. His summary judgment motion is therefore denied.
2. Common-law Contribution
In addition to its claim under General Obligations
Law § 11-100, Defendant also seeks contribution from
Movants under a common-law negligence theory, con-
tending that they breached a duty to Defendant to prevent
it from incurring liability as a result of Plaintiff's injuries.
As previously discussed, Plaintiff may not maintain an
action directly against the Movants for injuries she sus-
tained as the result of her own alleged voluntary intoxic-
ation. However, Defendant cites Raquet v. Braun, 90
NY2d 177, 182, 681 N.E.2d 404, 659 N.Y.S.2d 237
[1997], for the proposition that even in such situations,
"a claim of contribution may be asserted where there has
been a breach of a duty running from the contributor to
the defendant who has been held liable."
The threshold question in any negligence action is:
does defendant owe a legally recognized duty of care to
plaintiff? . . . The injured party must show that a defend-
ant owed not merely a general duty to society but a spe-
cific duty to him or her, for without a duty running dir-
ectly to the injured person there can be no liability in
damages, however careless the conduct or foreseeable
the harm. (Hamilton v. Beretta U.S.A. Corp., 96 NY2d
222, 232, 750 N.E.2d 1055, 727 N.Y.S.2d 7 [2001]).
To support Defendant's common-law contribution
claim, it must show that a duty runs directly from
Movants to it as the injured person. Defendant alleges
that the Movants had the opportunity to prevent underage
drinking in their apartment and knew or should have
known that under-age drinking was taking place there,
citing Demarest v. Bailey, 246 AD2d 772, 668 N.Y.S.2d
722 [3d Dep't 1998], Lane v. Barker, 241 AD2d 739, 660
N.Y.S.2d 194 [3d Dep't 1997], and Fantuzzo v. Attridge,
291 AD2d 871, 737 N.Y.S.2d 192 [4th Dep't 2002]. These
cases, however, address the well-established duty of
landowners and their agents to act reasonably to prevent
harm to persons on their property a duty that, in each of
the cited cases, runs directly between the landowners and
an injured plaintiff. The cases cited do not involve third-
party contribution claims and do not address the question
whether a duty exists on the part of a third party to pro-
tect a landowner from incurring liability to a person
harmed on its property. Similarly, Raquet does not estab-
lish the existence of such a duty; it merely holds that a
claim of contribution may be asserted when a duty run-
ning from the contributor to the defendant who has been
held liable exists.
 Page 106

"If an independent obligation can be found on the
part of a concurrent wrongdoer to [*7] prevent foresee-
able harm, he should be held responsible for the portion
of the damage attributable to his negligence, despite the
fact that the duty violated was not one owing directly to
the injured person." (Sommer v. Federal Signal Corp.,
79 NY2d 540, 559, 593 N.E.2d 1365, 583 N.Y.S.2d 957
[1992]). In this case, no such independent obligation has
been shown to exist. No case law to date has established
a duty of care between college students and their colleges
or between tenants and their landlords under circum-
stances such as these. The existence of a duty of care is a
question of law to be determined by the court (Donahue
v. Copaigue Union Free School District, 64 AD2d 29,
407 N.Y.S.2d 874 [2d Dep't 1978]), and courts are cau-
tious about extending liability to defendants for failure to
control the conduct of others. (Hamilton, supra at 233.)
In the absence of case-law precedent or a compelling ra-
tionale for the establishment of the new duty that De-
fendant claims to exist, this court declines to find that
college students living as temporary tenants in on-cam-
pus residential housing owe a duty to the landlord col-
lege to protect it from incurring liability as the result of
the alleged voluntary intoxication of another student. The
Third Party Defendants are therefore entitled to summary
judgment on Defendant's contribution claim in common
law negligence.
Conclusion
The factual evidence is insufficient to support the
claim that Third Party Defendant O'Connell played an in-
dispensable role or was complicit in a scheme to furnish
alcohol to minors. His motion for summary judgment
dismissing Defendant's contribution claim against him
under General Obligations Law § 11-101 is therefore
granted.
Issues of fact exist as to whether Third Party De-
fendant Adams furnished or unlawfully assisted in pro-
curing alcohol for minors within the meaning of § 11-
100. His motion for summary judgment on Defendant's
contribution claim under that provision is therefore
denied.
As a matter of law, neither Third Party Defendant
Adams nor O'Connell owed Defendant a duty of care to
prevent it from incurring liability to Plaintiff. Their mo-
tions for summary judgment dismissing Defendant's
common-law negligence contribution claims against
them are therefore granted.
This constitutes the Decision and Order of the Court.
Dated: December 19, 2007
Norwich, New York
ENTER
Hon. Elizabeth A. Garry

40 of 55 DOCUMENTS

[*1] Thomas D. Pakenham, Jr., Plaintiff, against Westmere Realty, LLC, and Mi-
chael Lepkowski, LCB Tax Associates, Inc., d/b/a Jackson Hewitt, Defendants.

21-496

SUPREME COURT OF NEW YORK, RENSSELAER COUNTY

2007 NY Slip Op 51722U; 16 Misc. 3d 1137A; 851 N.Y.S.2d 59; 2007 N.Y. Misc. LEXIS
6246

September 6, 2007, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND ing, probe, top, cross claim, repair work, issues of fact,
WILL NOT BE PUBLISHED IN THE PRINTED OFFI- bright line, replacement, inoperable, separating, repair-
CIAL REPORTS. ing, cleaning, notice, space

CORE TERMS: flame, work performed, repair, roof, HEADNOTES

invoice, sensor, ladder, routine, spark, sparker, enumer-
ated, snow, wear and tear, heat, ice, control board, heat-

[**1137A] [***59] Labor--Safe Place to Work--
Maintenance Work.
COUNSEL: Goldberg Segalla LLP, Jonathan M. Bern-
stein, Esq., (Attorneys for Defendant Westmere Realty),
Albany, New York.
Law Office of Kris T. Jackstadt, Mark P. Donohue, Esq.,
(Attorneys for Defendant Michael Lepkowski, LCB Tax
Associates, Inc. D/b/a Jackson Hewitt), Albany, New
York.
DeGraff, Foy, Kunz, & Devine, LLP, Attorneys for
Plaintiff, Albany, New York.
JUDGES: Lynch
OPINION BY: Lynch
OPINION
Michael C. Lynch, J.
Plaintiff, who was employed as an HVAC service
technician, was injured when he fell from a ladder lean-
ing against the roof of a building owned by defendant
Westmere Realty, LLC (hereinafter, Westmere). He was
on the roof to perform work on a heating unit that ser-
viced [*2] space rented by defendant Michael Lep-
kowski, LCB Tax Associates, Inc. d/b/a Jackson-Hewitt
(hereinafter, Jackson-Hewitt). At his examination before
trial, plaintiff described his accident as occurring as he
was descending the ladder to retrieve his tools from his
truck. He testified that the flat roof of the premises was
covered with ice and an inch or two of snow (Westmere
Motion Exhibit D page 57-58). While standing on the top
rung with both feet on the ladder, it slid "sideways and
backwards" (Id., page 68). Though he was not clear as to
how the accident occurred (see, Id. pages 73-78), he test-
ified that the rails of the ladder were leaning against the
icy surface on the edge of the roof (Id. page 73) and that
"best understanding" of how the accident occured was
that "It was a slippery surface leaning onto the building.
And when there is that much wieght on top of it, the lad-
der must have been top heavy. And it was just enough,
my momentum getting on the ladder was enough to push
it to the side (Id. page 72) Plaintiff commenced this ac-
tion against the building owner and tenant alleging viol-
ations of Labor Law § 240(1), § 241(6), and common
law and statutory negligence. Westmere asserted a cross
claim against the tenant for indemnification. Defendants
now each seek summary judgment dismissing plaintiff's
claims and Jackson Hewitt seeks summary judgment dis-
missing Westmere's cross claim.
The scope of Labor Law § 240(1) is not necessarily
Page 107
limited to providing coverage for workers on a construc-
tion site, rather, it is necessary to consider whether the
worker was injured while engaged in a specified task, in-
cluding the "repairing . . . of a building or structure"
(Labor Law § 240(1); Martinez v. City of New York, 93
N.Y.2d 322, 326, 712 N.E.2d 689, 690 N.Y.S.2d 524). Re-
pair work must be distinguished from "routine mainten-
ance", however, because the former is a covered activity
but the latter is not (Esposito v. New York City Industrial
Development Agency, 1 N.Y.3d 526, 528, 802 N.E.2d
1080, 770 N.Y.S.2d 682). Here, the parties do not dispute
what work was performed on the roof the day of
plaintiff's accident, rather, the essential dispute is wheth-
er the work performed was repair work or "routine main-
tenance" as the terms are defined by Labor Law §
240(1).
Whether a worker was engaged in "routine mainten-
ance" or repair work requires an assessment of the nature
of the work performed, not the characterization of the
work. For example, if the work involved replacement of
parts that would ordinarily require replacement over time
due to wear and tear, it is "routine maintenance", even if
it was deemed a "repair" job (see, e.g Esposito v. New
York City Industrial Development Agency, 305 A.D.2d
108, 760 N.Y.S.2d 18. affd., 1 N.Y.3d 526, 802 N.E.2d
1080, 770 N.Y.S.2d 682 (Supra)). If there is some evid-
ence that the "machine or object being worked upon was
inoperable or not working properly" the work may be re-
pair work (Kirk v. Outokumpu American Brass, Inc., 33
A.D.3d 1136, 1138, 823 N.Y.S.2d 556). But, "[e]ven if the
item to be repaired is malfunctioning or inoperable, when
the work involves only component replacement or ad-
justment necessitated by normal wear and tear, it consti-
tutes routine maintenance rather than "repairing " or any
other enumerated activity". (Barbarito v. County of
Tompkins, 22 A.D.3d 937, 803 N.Y.S.2d 208, app. den. 7
N.Y.3d 701, 850 N.E.2d 1166, 818 N.Y.S.2d 191). Thus, if
the object is inoperable or not working properly due to a
failure to perform regular and necessary maintenance,
the work performed to restore the object to operating
condition may be still be considered "routine mainten-
ance" (Robertson v. Little Rapids Corporation, 277
A.D.2d 560, 715 N.Y.S.2d 482, abrogated on other
grounds, Goad v. S. Elec. Int'l., 304 A.D.2d 887, 758
N.Y.S.2d 184). ).
Summary judgment is a drastic remedy which
should only be granted when there clearly are no triable
issues of fact (see Andre v Pomeroy, 35 N.Y.2d 361, 364,
320 N.E.2d 853, 362 N.Y.S.2d 131 [1974]). Accordingly,
[*3] defendants, as proponents of summary judgment,
must present sufficient evidence to demonstrate the ab-
sence of any material issues of fact (Alvarez v Prospect
Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d
923). Only if a right to judgment as a matter of law is es-

tablished will the burden shift to the plaintiff to establish,
by admissible proof, the existence of genuine issues of
material fact (see Zuckerman v City of New York, 49
N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595).
In support of their motion and cross motion, defend-
ants submit an invoice prepared on the day of the acci-
dent by Thomas French, the employee dispatched to the
Jackson-Hewitt space after plaintiff's accident, Mr.
French's affidavit, and a transcript of deposition testi-
mony provided by Donald Abbruzzese, the president of
Northeast Refrigeration (hereinafter, Northeast),
plaintiff's former employer.
The invoice dated January 21, 2005, reads:
"SANDED FLAME SENSOR. UNIT WOULD NOT
LIGHT EACH TIME. ADJUST SPARKER AND
CLEANED. UNIT FINE NOW" (Jackson Hewitt Exhibit
J). Describing the work performed, Mr. French avers that
the roof top unit
has a flame sensor. This is a safety
switch that cuts off the flow of gas to the
heating unit in the absence of a flame. Un-
der normal operation, the flame burns
over the sensor. Due to the presence of the
flame, over time, the sensor can become
dirty. When this happens, the sensor cuts
off the gas supply to the heating unit. I
sanded the flame sensor to remove the
build up of debris and rust caused by the
flame. . . The flame is ignited by a sparker
similar to a spark plug. Over time, due to
wear and tear, the "spark gap" of the
sparker can come out of adjustment. This
is a normal item of wear and tear. I adjus-
ted the spark gap and cleaned the sparker.
(Westmere Exhibit G, PP 3,4). Similarly, when asked to
explain the January 21, 2005 invoice, Mr. Abbruzzese
testified that the "sparker" that lights the burner has a
"working life" and will wear out within "two years to fif-
teen years, there's no rhyme or reason" (Westmere Exhib-
it E Abburzzese Transcript, p. 11). Specifically, he ex-
plained that the sparker
A. . . gets out of adjustment because as
it is in the flame, possibly at the end of it,
it actually starts to burn away --
Q. Okay.
A. So it had to be readjusted some-
times, or sanded.
(Id. at pages 61-62).
Page 108
With respect to the flame sensor, Mr. Abbruzzesse
explained that "sanding" is the same as cleaning, and is
necessary because a glaze builds up, "acts like an insulat-
or, and the flame doesn't make a get a good connection"
(Id., p 60). The build up, he explained, "happens by the
nature of operation". When asked whether sanding/clean-
ing the flame sensor is a maintenance item, he testified:
A. ". . . yes it is if you look at a manu-
facturer's book, not all of them say it, but
part of the maintenance is to sand that
flame sensor. But I'm not sure on this roof
top if it is or not.
Q. Okay. Whether it's in the book,
you mean? [*4]
A. Yes.
Q. But regardless of whether it's in
the book, the phenomenon occurs
A. Correct.
Q. by the nature of flame and this
sensor?
A. If they go on a maintenance pro-
cedure, they are supposed to sand the
flame sensor.
(Id., pp. 60-61)
Both Mr. Abbruzzesse and Mr. French confirmed
that after the work was performed on January 21, 2005,
the heat was on and both the flame sensor and sparker
were working properly (Id., page 62; Westmere Exhibit
G P 5).
The Court is satisfied, based on these submissions,
that the activities performed on the rooftop unit on Janu-
ary 21, 2005 were maintenance, not repair (see, Abatiello
v. Lancaster Studio Associates, 3 N.Y.3d 46, 814 N.E.2d
784, 781 N.Y.S.2d 477 [where remedy for malfunction
would be loosening a few screws and replacing tap on
malfunctioning cable junction box, the work is routine
maintenance]; compare, Holka v Mt. Mercy Academy,
221 A.D.2d 949, 634 N.Y.S.2d 310 lv. dismissed, 87
N.Y.2d 1055, 666 N.E.2d 1061, 644 N.Y.S.2d 147 [remov-
al of broken motor on air conditioning unit for the pur-
pose of repairing it is repair work covered by § 240(1);
Kerr v. Louisville Housing, Inc., 2 A.D.3d 924, 769
N.Y.S.2d 616 [removal of screws from inoperable, im-
properly installed rooftop ventilator is repair, not main-
tenance]).
In response to defendant's motion, plaintiff argues
that the work performed on January 21, 2005 was a tem-

porary repair, incidental to the permanent repair of the
unit, which was not completed until on or about February
4, 2005. To proceed on this premise, plaintiff must
demonstrate that there is at least a factual question with
regard to whether the work performed on January 21,
2005 "fell into a separate phase easily distinguishable
from other parts of [a] larger construction project" (Prats
v. Port Authority of New York and New Jersey, 100
N.Y.2d 878, 881, 800 N.E.2d 351, 768 N.Y.S.2d 178;
Jones v. Village of Dannemora, 27 A.D.3d 844, 811
N.Y.S.2d 186). In this regard, the Court of Appeals in-
structs that
"it is neither pragmatic nor consistent with the spirit
of the stature to isolate the moment of injury and ignore
the general context of the work. The intent of the statute
was to protect workers employed in the enumerated acts,
even while performing duties ancillary to those acts
Prats, Supra at 882). If there is a "bright line separ-
ating the enumerated and non enumerated work"
(Beehner v Eckerd Corporation, 3 N.Y.3d 751, 821
N.E.2d 941, 788 N.Y.S.2d 637), the non-enumerated work
performed falls into a separate phase and plaintiff was
"not a person employed' to carry out repairs as that term
is used in § 240(1)" (Martinez, Supra at 326). Accord-
ingly, not only must there be no separating, "bright line",
but it must also be clear that the work, as a whole, was
enumerated work.
In support of his argument that the "general context"
of the work was repair, plaintiff includes a handwritten
invoice, dated February 4, 2005 that reads: "Found Con-
trol Board Faulty - Control would not sense flame" and
indicates that two parts, a Control Module and Spark
Probe, were installed. Plaintiff also submits copies of
handwritten invoices by Northeast refrigeration evincing
that (1) a control board and "Electrode Assy Universal"
were ordered on February 3, 2005 and delivered on Feb-
ruary 4, 2005 (Pakenham Affidavit, Exhibit B, C, D, E).
In further support, plaintiff submits his own affidavit
and an affidavit by an expert, Michael O'Brien. Neither
affidavit provides a comprehensive explanation of the
activities performed on February 4, 2005. Pakenham
avers that it was a "permanent repair of the condition,
[*5] which required the temporary repair on January 21,
2005" (Pakenham Affidavit, P13). O'Brien avers that,
"the problem with this heating unit evidenced in the in-
voices . . . is a significant one. The problem is not one
would expect to see routinely, nor was the work done as
part of what would be expected in routine maintenance
of such a unit which would include filter changes, in-
spection of belts and electrical components or coil clean-
ing" (O'Brien Affidavit, P8). O'Brien adds that it is
"simply inaccurate to characterize the work done . . . on
January 21, 2005 as evidenced by the . . . invoices as
Page 109
simple maintenance, or necessitated by normal wear and
tear . . ." (Id., P9).
At his deposition, Mr. Abbruzzese's characterization
of the work performed on February 4, 2005 appears to be
consistent with both plaintiff's and his expert's character-
ization, however, for when questioned about the invoice 1
(Jackson Exhibit K), he explained that the work per-
formed on February 4 by Northeast Refrigeration would
have been the "permanent fix" of the "problem"
(Westmere Exhibit E, Abbruzzese Transcript, page 37)
explaining:
A: . . . The spark probe is basically the
sensor sparker that he cleaned on
1/21/2005, which goes back to the control
board, which is basically the brains of the
furnace that, you know, is the safety
device that it got a flame signal to turn on
the main burner.
Q: So if I understand it, the part that's
referenced that Mr. French sanded in [the
January 21, 2005 invoice] . . .
A: Correct.
Q. . . . does the February 8, 2005 in-
voice reflect that that part was replaced?
A. Yes.
Q. And in addition to that, you said
something about a control board.
A. The control board is a part where
that probe goes to prove that there is a
flame and it's safe to turn the main gas
burner on.
Z. And that's in the unit that's up on
the roof?
A. Yes.
Q. And that had to be replaced as
well?
A. Yes.
Q. Is replacing the control board
something that would be done during the
annual maintenance that you talked about
earlier?
A. No.
Q. Would replacing the spark probe, I
think that's what it is, the part that was re-
placed, would that be something that
would be part of the annual service that
we talked about?

A. No.
(Id., pages 37-38).
1 It appears, based on the invoice numbers, that
the February 8, 2005 invoice is the same as the
February 5, 2005 invoice cited by plaintiff in op-
position to defendants' motions.
Even assuming, as plaintiff contends, that the work
performed on January 21, 2005 failed to properly fix the
heating unit, and that the work performed on February 4,
2005 was something more than "component replacement
or adjustment necessitated by normal wear and tear", this
Court finds that plaintiff has failed to raise a triable issue
of fact with regard to the existence of a [*6] "bright line
separating" the work performed on January 21 from the
work performed on February 4, 2005.
As noted above, neither affidavit submitted by
plaintiff specifically explains the nature of "the
problem". Additionally, simply describing the work as
"significant" and "not maintenance" does not create a tri-
able issue of fact with regard to whether the work is "re-
pair" in the legal sense (see, Esposito, Supra; Kirk,
Supra at 1138). The evidence in the record demonstrates
that on January 21, 2005, "the problem" was resolved by
cleaning one part and sanding another, and, at the com-
pletion of that activity, the heat was on and the unit was
"fine". Mr. Abruzzese explained that it appeared that the
heat worked for a period following the first visit, and
. . . he got it to work, it lasted for two
weeks, . . . and he went back, there was
another no heat call, and that's when he
decided that he was going to change the
module and the spark box -- and the spark
probe.
These facts distinguish this case from Prats,
(Supra), where the worker was performing inspections
that were "ongoing and contemporaneous with the other
work that formed part of a single contract" the other con-
tract work being "level[ing] floors, lay[ing] concrete and
rebuild[ing] walls to replace large air filtering systems"
(Id., page 880). Here, even assuming that the work per-
formed on February 4, 2005 was "repair" for purposes of
§ 240(1), the enumerated work could not have begun un-
til after the second no heat call and after the parts were
ordered.
Plaintiff's reliance on deposition testimony by Mr.
Casler, an employee at Jackson Hewitt who was working
Page 110
at the location in January and February 2005 does not al-
ter this result. Mr. Casler testified that "the second North-
east guy" "got his heat on", adding that he was told that
the "thermocouple was bad" and he needed a part (Jack-
son Hewitt Exhibit H, pages 47-48). Though Mr. Casler
does not testify with specificity when this conversation
occurred, plaintiffs contend it occurred on January 21,
2005. Defendants argue that this conversation could not
have occurred on January 21, 2005, because Mr. French
did not order any parts until nearly two weeks later. Even
assuming, however, that the conversation occurred on
January 21, 2005, the "bright line" separating non-enu-
merated work from enumerated work does not shift,
where, as here, there is no dispute that the parts were not
ordered until February 3, 2005.
Based on the foregoing determination that the work
performed was maintenance, not repair, and because, the
protection of Labor Law § 241(6) does not extend to
claims arising out of maintenance performed outside of
the construction context (Nagel v. D& R Realty Corpora-
tion, 99 N.Y.2d 98, 782 N.E.2d 558, 752 N.Y.S.2d 581),
defendants motions to dismiss plaintiff's Labor Law §
240(1) and § 241(6) claim is granted.
Defendants also seek summary judgment dismissing
plaintiff's Labor Law § 200 cause of action. Labor Law §
200 is a codification of the owner and/or general con-
tractor's common law duty to provide workers with a
safe place to work (Comes v. New York State Electric
and Gas Corporation, 82 N.Y.2d 876, 631 N.E.2d 110,
609 N.Y.S.2d 168). If the hazardous condition is caused
by the method or means of work, an owner will not be li-
able unless it is demonstrated that the owner had super-
visory control over the work (Lombardi v. Stout, 80
N.Y.2d 290, 295, 604 N.E.2d 117, 590 N.Y.S.2d 55).
Where, as here, it is alleged that the injuries resulted
from a dangerous condition at the work site, a plaintiff
must demonstrate that the [*7] defendants had actual or
constructive notice of the unsafe condition that caused
the accident (Jurgens v. Whiteface Resort on Lake Pla-
cid, 293 A.D.2d 924, 926, 742 N.Y.S.2d 142) and control
of the place where the injury occurred (Wolfe v. KLR
Mechanical, 35 A.D.3d 916, 826 N.Y.S.2d 458).
Here, defendant Jackson Hewitt argues that because
it had no obligation under the lease with regard to the
roof, it can not be liable under Labor Law § 200. This
Court agrees that as a matter of law, defendant Jackson
Hewitt has demonstrated that it did not have control of
the place where the injury occurred. The Court notes that
Westmere's owner and property manager, Michael
Caruso, testified that after the accident, he noticed a
"small little patch" (Westmere Exhibit C, Caruso Tran-
script, page 108) of snow on the ground in the area "un-
derneath his ladder" after the ladder had fallen to the
 Page 111

ground (Id. p. 97; p. 106). As noted above, though the
plaintiff did not have an exact recollection of the fall, he
testified, first, that he placed the ladder on a "clear
space" (Id. p 42 ), and later, confirmed that the ladder
was placed where the pavement was dry (Id. p. 50).
Though the lease requires Jackson Hewitt to remove
snow and ice from both the front and rear entrance ways
(Exhibit I, para 31), there is no record support for any
claim that the base of the ladder slipped on snow or ice
on the ground in the vicinity of Jackson-Hewitt's rear
entryway and Caruso testified that Jackson Hewitt had
no obligation under the lease with regard to the roof
(Caruso Transcript at page 113).
Constructive notice of a dangerous condition may
exist where a defect is visible and apparent and has exis-
ted for a "sufficient length of time prior to the accident to
permit [defendants] to discover and remedy it" (Morrow
v. Ashley, 3 A.D.3d 619, 620, 770 N.Y.S.2d 760, citing
Gordon v. American Museum of Natural History, 67
N.Y.2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646).
Though he testified that he did not "examine" the roof
for ice or snow (Caruso Transcript, page 34), he recalled
that it had snowed the night before the accident (Id., page
106), and confirmed that he did not engage in a regular
practice of removing snow and ice from the roof (Id.,
page 41). Accordingly, this Court finds that defendant
Westmere has not established as a matter of law that it
did not have constructive notice of the allegedly danger-
ous conditions and the burden has not shifted to plaintiff
on this claim (Winegrad v. New York University Medical
Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487
N.Y.S.2d 316).
Jackson Hewitt also seeks summary dismissal of
Westmere's cross claim for indemnification. Westmere
asserts that under the lease agreement, Jackson Hewitt is
responsible for maintaining and repairing the HVAC unit
and for snow and ice removal along the storefront, in-
cluding the front and rear entryways to the leased space.
In light of the foregoing determinations (1) that there was
no violation of Labor Law § 240(1) and § 241(6) and that
Jackson Hewitt did not have control of the place where
the injury occurred (i.e. the roof), Jackson Hewitt's mo-
tion is granted.
Accordingly,
Defendants motions to dismiss plaintiff's Labor Law
§ 240(1) and 241(6) claims are GRANTED; defendant
Jackson Hewitt's motion to dismiss plaintiff's Labor Law
§ 200 and Westmere's cross claim is granted; defendant
Westmere's motion to dismiss plaintiff's Labor Law §
200 claim is denied, all without costs. The foregoing
Memorandum constitutes the Decision and Order of the
Court. All papers, including this Decision and Order, are
returned to the attorneys for defendant Jackson Hewitt.
The signing of this Decision and Order shall not consti-
tute entry or filing under CPLR Rule 2220. Counsel is
not relieved from the applicable provisions of that Rule
respecting filing, entry and Notice of Entry.
[*8] SO ORDERED
ENTER
Dated: Albany, New York
Michael C. Lynch
Justice of the Supreme Court

41 of 55 DOCUMENTS

Leopold v. Eckles

L&T063332/06

CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY

2007 N.Y. Misc. LEXIS 6818; 238 N.Y.L.J. 56

August 21, 2007, Decided

CASE SUMMARY: petition for summary holdover proceeding against re-

spondent tenant; the parties sought to determine if the
landlord's notice to cure could require the tenant to repair
PROCEDURAL POSTURE: Petitioner landlord filed a structural damages not within the apartment, allegedly

caused by the tenant, as a condition to avoid eviction.
OVERVIEW: The landlord's notice to cure indicated
that a cast iron aluminum tub, an old oak China cabinet,
large urns, and several bookcases in the tenant's apart-
ment exceeded the 60 pounds per square foot authorized
by the certificate of occupancy and caused the floor to
buckle and sink into the ceiling of the space below. The
landlord sought an order requiring the tenant to repair the
structural damage to the floor and outside of the confines
of his apartment into the "space" below. The court found
that the lease was never intended to allow, let alone im-
pose a duty upon, the tenant to access the structural areas
of the building outside the apartment in order to make re-
pairs. While the tenant was not necessarily free from fin-
ancial liability for the damage to the structure of the
building, the notice to cure could not go beyond requir-
ing the tenant to cease the lease violation by also requir-
ing, as a condition to avoid eviction, that the tenant re-
pair the structural damage outside the apartment regard-
less of the cost. Consequently, the notice to cure was
fatally defective.
OUTCOME: The petition was dismissed.
CORE TERMS: tenant, lease, cure, repair, apartment,
eviction, floor, space, notice, landlord, contracted, hold-
over, tenancy, effectuate, beams, certificate of occu-
pancy, square foot, removing, pounds, single incident,
live load, alteration, repairing, nuisance, default, duty to
repair, objectionable conduct, personal injury, electrical,
incidental
LexisNexis(R) Headnotes
Constitutional Law > Bill of Rights > Fundamental
Freedoms > General Overview
Contracts Law > Types of Contracts > Lease Agree-
ments > General Overview
[HN1] The freedom to contract, as a controversial main-
stay of constitutional jurisprudence, is often rightly
curbed to reduce the effect that unequal bargaining
power has on the contracting parties. Leases are naturally
no exception. What each party can be expected to do in
order to satisfy lease provisions is relative to their re-
spective positions as representing owner, with complete
dominion over the physical structure and edifice, and the
tenant, who pays for the privilege of a temporary occu-
pancy of a defined space within the owned entity.
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Eviction Actions > General Over-
Page 112
view
Real Property Law > Landlord & Tenant > Lease
Agreements > Lease Provisions
[HN2] A notice to cure a lease violation may not require,
as a condition to avoid eviction, the repairing of structur-
al damages not within the subject apartment.
COUNSEL: [*1] The petitioner was represented by
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., by
David R. Brody, Esq.
The respondent was represented by John D. Gorman,
Esq.
JUDGES: Judge Finkelstein
OPINION BY: Finkelstein
OPINION
This summary holdover proceeding is predicated
upon petitioners' claim that respondent is violating a sub-
stantial obligation of his tenancy. The tenancy is subject
to the Emergency Tenant Protection Act of 1974. Both
sides are represented by counsel. Respondent was served
with a notice to cure dated January 5, 2006, followed by
a notice terminating the tenancy due to respondent's al-
leged failure to comply with the notice to cure.
Given petitioners' position as to what would consti-
tute a cure of the lease violation, close scrutiny of the no-
tice to cure is warranted. The notice quotes from two
paragraphs of a lease between the parties which com-
menced September 1, 1988, upon which this proceeding
is based (although respondent claims his original lease is
dated January 30, 1973). Paragraph 8 of the 1988 lease
(annexed as Exhibit A to respondent's memorandum of
law) states, in full:
Tenant must take good care of the
Apartment and all equipment and fixtures
in it. Landlord will repair the plumbing,
heating [*2] and electrical systems. Ten-
ant must, at Tenant's cost, make all repairs
and replacements whenever the need res-
ults from Tenant's act or neglect. If Tenant
fails to make a needed repair or replace-
ment, Landlord may do it. Landlord's
reasonable expense will be added rent.
(emphasis added).
Paragraph 15 of the lease states, in pertinent part:
Tenant must, at Tenant's expense,
promptly comply with all laws, orders,
rules, requests, and directions, of all gov-

ernmental authorities, Landlord's insurers
Board of Fire Underwriters, or similar
groups.
The notice then indicates that the certificate of occu-
pancy provides that the live load of the floor is 60
pounds per square foot. It then specifies that respondent
is violating the lease and certificate of occupancy be-
cause:
The tenant has placed numerous items
on the floor of the Subject Premises, in-
cluding, but not limited to, a cast iron alu-
minum tub, an old oak China cabinet,
large urns and several bookcases that
have caused said floor to buckle and sink
into the ceiling of the space below. Ten-
ant's placement of these items on the floor
of the Subject Premises has structurally
damaged the wooden beams that comprise
the floor structure of the Subject [*3]
Premises and has placed a weight upon
said floor that exceeds 60 pounds per
square foot. (emphasis added).
The notice to cure essentially ends with the require-
ment that respondent cure this default by February 1,
2006. It is silent as to what respondent would have to
specifically do in order to effectuate a cure. That is the
crux of the issue before the Court.
At conference, respondent, while not admitting any
of the allegations, indicated he would agree to effectuate
a cure by moving or removing any items in the apartment
that were in violation of the lease or certificate of occu-
pancy. However, petitioners indicated that in their view,
just removing the items in question would not constitute
a cure of respondent's default under the lease. Their posi-
tion is that, in order for respondent to cure and avoid
eviction, he would have to expend an estimated $ 45,000
and repair, himself, the structural damage allegedly
caused by his placing a weight upon his apartment floor
that exceeds 60 pounds per square foot, including the
substantial damage which allegedly has occurred outside
of the confines of his apartment and in the "space" be-
low.
Given these conflicting positions, the parties agreed
[*4] by stipulation to brief the following issue as defined
prior to trial:
In a holdover proceeding based upon
lease violation, can a notice to cure not
Page 113
only require the ceasing of the lease viola-
tion but also require, as a condition to
avoid eviction, the repairing of structural
damages not within the apartment, assum-
ing they were caused by the lease viola-
tion. (emphasis added).
By subsequent stipulation, the parties also agreed
that this proceeding is submitted for summary determina-
tion based on the issue stated above and the briefs sub-
mitted thereon. Thus, the Court must first and foremost
decide whether a notice to cure can require not only the
cessation of the offending conduct, but also require the
mitigation of damage rendered to the structure of the
building itself, and not merely contained within the sub-
ject apartment. Petitioner appears to set forth a novel ar-
gument, and from the memoranda and reply memoranda
submitted by the parties, it would appear that there is
little case law to look to for guidance.
[HN1] The freedom to contract, as a controversial
mainstay of constitutional jurisprudence, is often rightly
curbed to reduce the effect that unequal bargaining
power has on the contracting [*5] parties. Leases are
naturally no exception. What each party can be expected
to do in order to satisfy lease provisions is relative to
their respective positions as representing owner, with
complete dominion over the physical structure and edi-
fice, and the tenant, who pays for the privilege of a tem-
porary occupancy of a defined space within the owned
entity.
The space contracted for is the only space that car-
ries with it any legal right that the tenant has to occupy it.
In the case at bar, that space is contained within the walls
of the subject apartment. If the tenant were to affect that
space in a manner forbidden by a lease provision, then
that tenant would have to cure the violation and would
have a right to do so within a legally specified time. All
of this is well settled.
However, here, the petitioner would have the Court
say it is able to remove respondent from the premises by
force of law for affecting the space outside of his apart-
ment, namely the structure of the building under the
floor, which space is not contracted for by landlord and
tenant and, concerning which, the tenant owes no duties
within the lease. Respondent has a duty within the lease
not to affect or occupy such [*6] space as is not contrac-
ted for, and to this end, he must cure and cease affecting
that space (i.e., assuming the certificate of occupancy
provides that the live load of the floor cannot exceed 60
pounds per square foot, by moving or removing items
which are proven to be on the floor of the apartment and
which place a weight upon said floor which exceeds the

live load limit). However, petitioners go much further
and assert that in order to avoid eviction from his home
of some 35 years, respondent must pay for and effectuate
repairs, allegedly caused by the excessive load on his
floors, in areas of the building outside the confines of the
space he is renting, outside of his dominion and control,
and regardless of the cost.
In Havens v. Hartshorn, 184 Misc. 310, 55 N.Y.S.2d
698 (Sup Ct, Genesee County 1945), a defendant in a
negligence action sought to implead a tenant whom the
landlord defendant claimed violated the repairs provi-
sion in their lease, causing the floor beams below the
apartment to eventually collapse, causing the injuries
from which relief was sought. In describing the tenant's
duty to repair, the lease read " . . . and to keep the leased
premises in repair except for ordinary wear and tear and
[*7] depreciation from use, it being understood that the
party of the second part will take care of all minor and
incidental repairs to the interior of said premises as and
when they become necessary, during the term of this
lease." This is a fairly standard recitation of the general
duty of a tenant to not alter the premises. The court in-
terpreted the provision as follows:
It is apparent that their only duty was to
make minor or incidental repairs to that
portion of the premises occupied by it, to-
wit: 'the floor space on the second and
third floors actually occupied' by it. There
is no agreement to make structural repairs
such as the beams and supports of the
flooring. As well might it be claimed that
the impleaded defendant contracted to re-
pair the foundations of the building. This
Court therefore concludes that under the
terms of the lease, the impleaded defend-
ant violated no duty owing to the defend-
ants to repair the beams and supports."
Havens at 314.
See also this Court's decision in Gammerman v Kulko
and Debaun Kavelman, 27 HCR 257A, 259 n.o.r. (Civ
Ct, Kings County 1997).
Like in Havens and Gammerman, supra, the instant
lease was never intended to allow, let alone impose a
duty upon, [*8] tenants to access such structural areas of
the building order to make repairs, in the tens of thou-
sands of dollars, necessary to cure possible breaches of
lease provisions. If that were the case, tenants could run
rampant through the building, altering electrical, plumb-
ing, and other elements of infrastructure, which would
not only be unsafe, but would often be illegal for them to
access.
Page 114
While, at this point, it cannot be said that respondent
is necessarily free from financial liability for the damage
to the structure of the building, he certainly is not in sub-
stantial violation of his lease, pending eviction if left
without cure. It might be instructive to state what this
case is not. It is not a holdover case based upon the more
common scenario of substantial alteration of the
premises, where, without the knowledge or permission of
the landlord, a tenant makes structural alterations within
the subject apartment or nonstructural alterations which
are inconsistent with the contemplated use of the
premises. Such typical instances of waste are very much
within the realm of the duty to repair clause in the stand-
ard residential lease, and make up the bulk of petitioners'
cited cases. In [*9] such a case, in order to avoid evic-
tion, the apartment might have to be restored to its ori-
ginal condition at the tenant's expense, regardless of the
cost (e.g., removing unauthorized partitions). The cure
can be effectuated because the remedial work is to be
done within the tenant's apartment.
This case is also not a nuisance or objectionable
conduct case where the tenant's unreasonable behavior is
recurring, frequent, or extremely dangerous. In such a
case, the tenant might not be entitled to an opportunity to
cure nuisance conduct at all. This case is, on the other
hand, based upon alleged accidental damage of a struc-
tural element of the building outside of the premises be-
ing leased. That is not to say that a lease containing a
clear clause imposing a duty upon a tenant to repair
structural damage outside of his apartment might not be
grounds for eviction if a default on such provision were
not cured. However, since no such provision exists here,
and all attempts made by petitioner to interpret paragraph
8 of the 1988 lease as extending to these ends have
stretched the bounds of plausibility concerning an under-
standing between the parties at the formation of the
lease, the Court [*10] cannot but see that the duty the
petitioner seeks to impose here was not contracted for,
and therefore cannot form the basis of respondent's evic-
tion.
There are a long line of cases in which courts have
found tenants could not be evicted on the basis of an isol-
ated instance of objectionable conduct, even though the
consequences of that conduct could be substantial. For
example, a single incident of setting fire to an apartment
(James v. New York City Housing Authority, 186 AD2d
498, 589 N.Y.S.2d 331 [1st Dept 1992]), and a single in-
cident of threatening the landlord's employees, including
hurling a cup of coffee in their direction (Sanford Flush-
ing Assocs v. James, NYLJ, May 21, 1997, p 29, col 6
[App Term, 2d Dept]) were insufficient to warrant the
tenant's eviction. A fire can cause thousands or even mil-
lions of dollars of property damage to a building, includ-
ing damage outside of the tenant's apartment, as can a
 Page 115

single incident of accidentally allowing the water to
overflow. Throwing coffee or engaging in a single fight
can cause substantial personal injury to the landlord or its
employees. Similarly, cases are legion where tenants
avoid eviction in holdover cases based upon breach of a
substantial [*11] obligation of the tenancy by simply
ceasing the breach.
This Court is not aware of any case in which it was
determined that the nature or infrequency of the nuisance
conduct did not warrant the tenant's eviction, or in which
the tenant ceased the substantial violation of his tenancy,
however the tenant still was to be evicted under another
separate ground for eviction -- that is, the failure of the
tenant to pay the enormous sums that may be required to
repair fire damage to the building and actually effectuate
the repairs, or the failure of the tenant to pay the personal
injury bills of the landlord or its employees, or, as here,
the failure of the tenant to pay the estimated $ 45,000.00
cost of the structural repairs to the building as well as be-
ing responsible himself for having the repairs done.
Thus, the Court concludes that under the Facts and
circumstances of this holdover proceeding, the notice to
cure cannot go beyond requiring the respondent to cease
the lease violation by also requiring, as a condition to
avoid eviction, that respondent repair the structural dam-
age outside the apartment (assuming they were indeed
caused by the lease violation), regardless of the cost. If
the [*12] petitioners have the necessary proof of causa-
tion and damage, they may very well have appropriate
remedies to recover the cost of repairing the alleged
structural damage under the lease and/or under negli-
gence law. However, they cannot create a new basis for
eviction by requiring not only the cessation of the viola-
tion, but further, that the tenant pay for, and effectuate,
the extensive structural repairs to the building upon pen-
alty of eviction.
The parties have stipulated that this proceeding is
submitted for summary determination based on the briefs
submitted and the issue the Court has determined above.
As the Court has decided that [HN2] a notice to cure a
lease violation may not require, as a condition to avoid
eviction, the repairing of structural damages not within
the subject apartment, and the notice to cure herein re-
quires exactly that, as confirmed by petitioner's stated
position at oral argument, the notice to cure is fatally de-
fective. Accordingly, the petition is dismissed.
This constitutes the decision and order of the Court.

42 of 55 DOCUMENTS

[*1] 426-428 West 46th St. Owners, Inc., 46th Street Associates, LP, and Robert M.
Gottesman, Plaintiffs, against Greater New York Mutual Insurance Company, De-
fendant.

603354/03

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2007 NY Slip Op 51420U; 16 Misc. 3d 1114A; 847 N.Y.S.2d 896; 2007 N.Y. Misc. LEX-
IS 5078

July 25, 2007, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND aging agent, matter of law, duty to defend, providing
WILL NOT BE PUBLISHED IN THE PRINTED OFFI- coverage
CIAL REPORTS.
HEADNOTES
CORE TERMS: tenant, apartment, insured, cooperat-
[**1114A] [***896] Insurance--Duty to Defend
ive, notice, staircase, summary judgment, occurrence,
and Indemnify--Notice to Insurer. Insurance--Construc-
shareholder, coverage, loft, building superintendent, es-
tion of Policy--What Constitutes "Insured."
tate manager, swear, insurer, policyholder, investigate,
indemnify, medical condition, issues of fact, declaration,
COUNSEL: For Plaintiffs: Fried & Epstein LLP, New
deposition, reasonableness, umbrella, floor, rent, man-

York, NY, Of Counsel: John W. Fried.
For Defendant: Greater New York Mutual Insurance
Company, New York, NY, Of Counsel: Richard C. Ru-
binstein.
JUDGES: Bernard J. Fried, J.
OPINION BY: Bernard J. Fried
OPINION
Bernard J. Fried, J.
This case involves an insurance coverage dispute. 1
Plaintiffs seek a declaration that defendant Greater New
York Mutual Insurance Company (GNY) is obligated to
defend and [*2] indemnify them in a personal injury ac-
tion commenced by Michelle Marshall (the Tenant), who
was allegedly injured from a fall from a staircase in a
studio apartment with a loft (the Apartment), in which
she then resided, on West 46th Street in Manhattan.
Plaintiffs also seek damages for GNY's alleged breach of
the insurance policy in refusing to defend and indemnify
them in the Tenant's underlying personal injury case.
1 The facts of this case are also discussed in my
prior decision on the motion to dismiss (426-428
West 46th St. Owners, Inc. v Greater New York
Mut. Ins. Co., [Sup Ct, NY County, July 6, 2004],
affirmed 23 AD3d 207, 804 N.Y.S.2d 61 [1st Dept
2005]).
GNY moves for summary judgment, pursuant to
CPLR 3212, dismissing the complaint as against the de-
fendant, and for a declaration that GNY need not defend
or indemnify plaintiffs in the Tenant's underlying action,
on the ground that plaintiffs failed to comply with the
notice provisions of the GNY commercial general liabil-
ity primary and umbrella insurance policies (together, the
Policy), 2 issued to 426-428 West 46th St. Owners, Inc.
GNY also moves for summary judgment in its favor
against 46th Street Associates, LP (Associates) and
Robert M. Gottesman (Gottesman), on the ground that in
the capacity in which these plaintiffs were sued by the
Tenant in the underlying case, they are not covered under
the Policy.
2 Except where it is necessary to differentiate
based on the separate policies, "the Policy" will
be used to signify both the primary and umbrella
policies.
During the time periods relevant in this case,
plaintiff Gottesman was a board member and the presid-
ent of 426-428 West 46th St. Owners, Inc., a domestic
cooperative corporation that owns the building on West
Page 116
46th Street in which the Tenant lived at the time of the
incident (the Cooperative Corporation). Plaintiff Associ-
ates, a domestic limited partnership, is owner of the
shares of the Cooperative Corporation allocable to the
proprietary leases of several apartments in the building at
428 West 46th Street, including the Apartment.
Associates leased the Apartment to the Tenant
through an executed residential lease. On that lease, As-
sociates is listed as the "Owner" of the Apartment
(Rubenstein Aff., Exh. C).
Gottesman swears that in 2002, when the incident
occurred, he was a general partner of Associates (Fried
Aff., Exh. 3, at 2, P 7). 3 Gottesman testified that his wife,
non-party Irene Fish Gottesman (Fish Gottesman), is
vice president of Associates.
3 Gottesman swears that, as of today, his part-
nership interest has been assigned to a limited li-
ability company (Fried Aff., Exh. 3, at 2, P 7).
In the underlying action, the Tenant sued plaintiffs
for injuries that she alleges she sustained as a result of a
fall on August 27, 2002 from a defective staircase inside
the Apartment. 4 Plaintiffs notified GNY of this incident
on June 18, 2003, approximately 10 months after the in-
cident occurred, but shortly after their receipt of the Ten-
ant's summons and complaint. After receiving notice of
the claim, GNY disclaimed, asserting that the notice was
not timely under the Policy and that Associates and
Gottesman were not insured thereunder.
4 Originally the Tenant sued Associates and
Gottesman, but later amended her complaint to
add the Cooperative Corporation.
The parties do not dispute that, at the time of the in-
cident, the Apartment was a one-room studio, with a
staircase leading to an elevated loft area. The Tenant test-
ified that she used the loft or platform area of her apart-
ment, which is elevated about eight or nine feet above
the main floor of [*3] the Apartment, for sleeping pur-
poses. 5
5 Defendant includes a picture of a part of the
Apartment, and "post-alteration" pictures of the
stairwell "to give the Court an idea of the height
of the fall and of [the Tenant's] apartment in gen-
eral" (Rubenstein Moving Aff., at 10).
Also undisputed is that the building superintendent
(the Building Superintendent) called 911 after he heard
the Tenant's cries for help, unlocked her front door with a
passkey, and found her on the floor, inside the apartment
on August 27, 2002. The Building Superintendent testi-
fied that the Tenant told him that she was unable to

move, and asked that he cover her unclothed body. The
Tenant was taken to the hospital by ambulance, where
Fish Gottesman visited her within weeks after the incid-
ent.
The primary GNY policy contains the following no-
tice provision:
"You must see to it that we are notified
as soon as practicable of an occurrence' or
an offense, which may result in a claim.
To the extent possible, notice should in-
clude:
(1) How, when and where the occur-
rence' or offense took place;
(2) The names and addresses of any
injured persons and witnesses; and
(3) The nature and location of any in-
jury or damage arising out of the occur-
rence' or offense"
(Fried Aff, Exh. A, at P-006).
"Occurrence" is defined in the primary policy as "an
accident, including continuous or repeated exposure to
substantially the same general harmful conditions" (Fried
Aff., Exh. A, at P-011). In the umbrella policy, an "Oc-
currence" is also defined as an accident (Fried Aff., Exh.
B, at P-020).
The movant on a summary judgment motion has the
initial burden of proving entitlement to summary judg-
ment, by tender of evidentiary proof in admissible form
sufficient to eliminate any material issues of fact from
the case (Zuckerman v City of New York, 49 N.Y.2d 557,
562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980];
Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,
476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Finkelstein v
Cornell University Med. Coll., 269 A.D.2d 114, 117, 702
N.Y.S.2d 285 [1st Dept 2000]). Where the proponent of
the motion makes a prima facie showing of entitlement
to summary judgment, the burden shifts to the party op-
posing the motion to demonstrate, by admissible evid-
ence, the existence of a factual issue requiring a trial of
the action, or to tender an acceptable excuse for his or
her failure to do so (CPLR 3212 [b]; Zuckerman, 49
N.Y.2d at 562).
Regarding its first ground for dismissal, that
plaintiffs failed to provide timely notice under the Policy,
GNY argues that it is entitled to summary judgment
against plaintiffs because of where plaintiffs found the
Tenant unable to move, on the main floor of the Apart-
ment at the bottom of banister-less staircase leading to a
Page 117
sleeping loft in the Apartment, there was no valid excuse
for the 10-month delay in providing notice of the occur-
rence. GNY contends that, under the circumstances, the
insureds failed to reasonably inquire into the facts to de-
termine whether there existed a possible [*4] reportable
claim.
Recently, the First Department stated:
"Where a liability insurance policy re-
quires notice of an occurrence to the carri-
er as soon as practicable, such notice must
be given within a reasonable period of
time, and the insured's noncompliance in
this respect constitutes failure of a condi-
tion precedent (Great Canal Realty Corp.
v Seneca Ins. Co., Inc., 5 NY3d 742, 833
N.E.2d 1196, 800 N.Y.S.2d 521 [2005]),
thus vitiating the contract as a matter of
law, without a showing of prejudice (Argo
Corp. v Greater NY Mut. Ins. Co., 4 NY3d
332, 339, 827 N.E.2d 762, 794 N.Y.S.2d
704 [2005])"
(Sorbara Const. Corp. v AIU Ins. Co., 41 A.D.3d 245,
838 N.Y.S.2d 531, 2007 N.Y. App. Div. LEXIS 7582, 2007
WL 1746907 [1st Dept 2007]); see also Paramount Ins.
Co. v Rosedale Gardens, Inc., 293 A.D.2d 235, 239, 743
N.Y.S.2d 59 [1st Dept 2002]).
"The duty to give notice arises when, from the in-
formation available relative to the accident, an insured
could glean a reasonable possibility of the policy's in-
volvement" (Paramount, 293 A.D.2d at 239-240 [citation
omitted]). Furthermore, "[t]he burden is upon the insured
to demonstrate that timely notice was given to the carri-
er" (Shaya B. Pacific, LLC v Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP, 38 AD3d 34, 46, 827 N.Y.S.2d
231 [2d Dept 2006], citing Great Canal Realty Corp. v
Seneca Ins. Co., 5 NY3d 742, 833 N.E.2d 1196, 800
N.Y.S.2d 521 [2005]).
"There may be circumstances, such as a lack of
knowledge that an accident has occurred or a reasonable
belief in nonliability, that will excuse or explain delay in
giving notice" (White v City of New York, 81 N.Y.2d 955,
615 N.E.2d 216, 598 N.Y.S.2d 759 [1993]; Public Ser-
vice Mut. Ins. Co. v Hollander, 228 A.D.2d 283, 644
N.Y.S.2d 214 [1st Dept], lv denied 88 N.Y.2d 816, 673
N.E.2d 1244, 651 N.Y.S.2d 17 [1996]). The good-faith
belief in nonliability must be reasonable in light of all of
the circumstances (Great Canal Realty Corp. v Seneca
Ins. Co., 5 NY3d 742, 744, 833 N.E.2d 1196, 800
N.Y.S.2d 521 [2005]; Empire City Subway Co. v Greater
New York Mut. Ins. Co., 35 N.Y.2d 8, 13, 315 N.E.2d

755, 358 N.Y.S.2d 691 [1974]) and it may be relevant to
the issue of reasonableness whether and to what extent
the insured has "inquired into the circumstances of the
accident or occurrence" (Security Mut. Ins. Co. of NY v
Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 293 N.E.2d
76, 340 N.Y.S.2d 902 [1972]; Great Canal, 5 NY3d at
744; see also White, 81 N.Y.2d at 958; RMD Produce
Corp. v Hartford Cas. Ins. Co., 37 AD3d 328, 331, 831
N.Y.S.2d 135 [1st Dept 2007]).
Where an insurance policy requires that notice of an
occurrence be given promptly, notice must be given
within a reasonable time in view of all of the facts and
circumstances (Paul Developers, LLC v Maryland Cas.
Inc. Co., 28 AD3d 443, 816 N.Y.S.2d 75 [2d Dept 2006];
see Security Mut., 31 N.Y.2d at 440). Moreover, "[i]t is . .
. well settled that the reasonableness of a delay, where
mitigating circumstances such as . . . lack of knowledge
of the occurrence or its seriousness are offered as an ex-
cuse, is usually for the jury" (Deso v London & Lan-
cashire Indemnity Co. of Am., 3 N.Y.2d 127, 143 N.E.2d
889, 164 N.Y.S.2d 689 [1957]; see also Argentina v Ot-
sego Mut. Fire Ins. Co., 86 N.Y.2d 748, 749, 655 N.E.2d
166, 631 N.Y.S.2d 125 [1995]; Galaxy Insurance Co. v
1454 Nicholas Avenue Assocs., 276 A.D.2d 424, 715
N.Y.S.2d 27 [1st Dept 2000]; Levine v Drake Manor,
Inc., 256 A.D.2d 448, 683 N.Y.S.2d 859 [2d Dept 1998]).
Defendant argues that the record, now fully de-
veloped, demonstrates that the Tenant was found in the
Apartment in close proximity to the bannister-less stair-
case that led to the loft, and submits deposition testimony
to support this proposition. In further support of its mo-
tion, defendant submits the Tenant's deposition testi-
mony, in which she states that she fell because there was
nothing to hold on to as she went down the stairs.
Defendant also submits witness testimony that Fish
Gottesman visited the Tenant in the hospital during
which time the Tenant had a conspicuous medical device
on her head, and had to be fed the cookies that Fish
Gottesman brought on the visit. Defendant asserts that
Fish Gottesman [*5] inquired about the Tenant while
speaking on the telephone with the Tenant's friends, and
was advised of the Tenant's inability to return to the
Apartment because it was not wheelchair accessible.
Defendant argues that the Tenant's fall down the
banister-less stairway in her apartment is unequivocally
an occurrence that triggered the Cooperative Corpora-
tion's obligation to report the accident to GNY as soon as
the Building Superintendent found the Tenant "lying
paralyzed at the bottom of the staircase, or for that matter
lying paralyzed anywhere in her small apartment"
(Rubenstein Moving Aff., at 13, P 38). Defendant con-
tends that the record demonstrates that plaintiffs knew of
the severity of the Tenant's injury, increasing their oblig-
Page 118
ation to investigate the incident. Defendant also points
out, and it is not disputed, that plaintiffs installed a rail-
ing on the loft stairway sometime after the Tenant moved
out, although it is not clear exactly when. Defendant ar-
gues that plaintiffs' contentions, made in the earlier mo-
tion to dismiss, that they did not know the injuries were
serious or that a reportable accident occurred because
they did not witness the accident, do not support a good-
faith belief in nonliability, or excuse the plaintiffs from
failing to investigate the facts or circumstances surround-
ing the Tenant's accident.
Plaintiffs oppose the motion, stating that they
"had no knowledge that:
(a) [the Tenant] had sustained an "ac-
cident;" (b) the purported accident al-
legedly was caused by a defect in [the
Tenant's] apartment; (c) [the Tenant's] in-
juries were serious; or (d) [the Tenant] in-
tended to hold plaintiffs liable for her in-
juries"
(Pl. Memo. of Law in Op., at 7). Plaintiffs contend that
they were not aware that the Tenant had fallen in the
Apartment or suffered an accident, or that an accident,
rather than an illness or continuing medical condition,
was the cause of the Tenant's hospitalization. They fur-
ther contend that despite the opportunity to do so, the
Tenant did not provide information to them concerning
the incident, or her medical condition, and did not indic-
ate that she intended to sue.
In opposition to the motion, plaintiffs provide the af-
fidavits of Gottesman and Fish Gottesman who swear
that the Tenant never advised them that she felt that the
staircase was in a state of disrepair or defective, and did
not tell plaintiffs of the nature of her condition (Fried
Aff., Exh.6, P 10 [Gottesman]; Fried Aff., Exh. 8, P 4
[Fish Gottesman]). Fish Gottesman swears that she knew
the Tenant since 1998, and visited her in the hospital
within a few weeks after the incident, where the Tenant
was sitting up in bed and did not discuss her condition or
say anything about having fallen. Contrary to the testi-
mony offered by defendant, Fish Gottesman testified at
her deposition that when she visited plaintiff in the hos-
pital, the Tenant was not wearing any braces or appli-
ances on her body, and that she did not bring anything to
the Tenant (Rubenstein Reply Aff., Exh. A, at 102-103).
Fish Gottesman further testified that she thought that her
relationship with the Tenant was such that the Tenant
would have informed her if the incident was related to
the Apartment, and the Tenant testified that her relation-
ship with Fish Gottesman was friendly.

Plaintiffs also submit admissible evidence from the
Building Superintendent and Fish Gottesman that neither
the Tenant, nor her family members or friends, ever men-
tioned a fall to them. In addition, plaintiffs submit the
Tenant's affidavit in which she swears that she did not
tell plaintiffs about the nature of the incident.
Plaintiffs point out, and it is not disputed that, albeit
late, the Tenant paid rent after the [*6] incident until the
time that she vacated the Apartment. Fish Gottesman
testified that some time, possibly months, prior to the in-
cident, the Tenant had been unable to pay rent due to a
medical condition, and that plaintiffs put no pressure on
her to pay her rent (Rubenstein Reply Aff., Exh. A, at 74,
91). It is undisputed that Tenant did not request of
plaintiffs the payment of her medical bills. Except for
Fish Gottesman's visit to the hospital, described above,
until served with a summons and complaint, plaintiffs of-
fer sworn testimony that they never saw or heard from
the Tenant again after the incident.
The primary issue here is whether the plaintiffs had
a reasonable basis to believe that no claim would be as-
serted by the Tenant under the circumstances (see SSBSS
Realty Corp. v Public Service Mutual Insurance Co., 253
A.D.2d 583, 677 N.Y.S.2d 136 [1st Dept 1998]). The
heart of defendant's argument is that because of the Ten-
ant's proximity to the staircase, that she was hospitalized
and that she told the Building Superintendent that she
could not move and asked to be covered, there is no be-
lievable excuse for plaintiffs having failed to investigate
and report the occurrence, thereby rendering their notice
to defendant late, as a matter of law. 6 One of the
premises underlying defendant's argument is that
plaintiffs knew that the Tenant was paralyzed, because
she told the Building Superintendent that she could not
move, and asked him to cover her. The Building Superin-
tendent testified, however, that he did not know what
was wrong with the Tenant when he found her lying, na-
ked and groggy, on the floor, and that he did not stay
with her, but waited outside the Apartment, after calling
for an ambulance.
6 Defendant asserts that because the Tenant was
found "paralyzed near the banister-less stairway .
. . no one can possibly believe that the circum-
stances here would not compel a reasonable per-
son to investigate the matter to see if a reportable
accident occurred" (Rubenstein Reply Aff., P 10).
To bolster their argument that plaintiffs knew of the
accident and the seriousness of the Tenant's condition,
defendant points to Fish Gottesman's deposition testi-
mony in which she states that she may have asked about
Marshall's condition. Defendant also provides the testi-
mony of a witness, Stacie Cowan Gray, a friend of the
Page 119
Tenant, who swore that she advised Fish Gottesman of
the Tenant's condition. Based on this evidence, defendant
argues that the plaintiffs were advised of the Tenant's
condition, which is unequivocal notice of the occurrence,
and that Fish Gottesman's affidavit otherwise must be
disregarded because it contradicts the "admission" she
made during her deposition.
It is indeed well settled that a party's affidavit in op-
position to a summary judgment motion which contra-
dicts his prior sworn testimony creates only a feigned is-
sue of fact insufficient to defeat a properly supported
motion for summary judgment (Harty v Lenci, 294
A.D.2d 296, 298, 743 N.Y.S.2d 97 [1st Dept 2002]). Fish
Gottesman's testimony that she may have inquired into
the Tenant's condition (see Rubenstein Reply Aff., at 7)
cannot be definitively characterized as an admission that
she was told of the Tenant's condition, which Fish
Gottesman explicitly denies in her affidavit. Moreover,
Gray's testimony does not constitute an admission by
Fish Gottesman. 7
7 Fish Gottesman also disputes as untrue Gray's
testimony that Fish Gottesman was aware that the
Tenant had an accident and had not regained used
of her legs, and planned to move out of the Apart-
ment because it was not wheelchair accessible
(Fried Aff., Exh. 30, P 11).
[*7] Presumably to discredit the Building Superin-
tendent, defendant submits the testimony of Terence
Bogan, a close friend of the Tenant, who swears that the
Tenant told him that the Building Superintendent knew
that she had fallen. Bogan's testimony, however, is con-
tradicted by that of the Building Superintendent and the
Tenant, raising credibility issues that are not resolvable
here (Forrest v Jewish Guild for the Blind, 3 NY3d 295,
315, 819 N.E.2d 998, 786 N.Y.S.2d 382 [2004] ["(c)red-
ibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are
jury functions, not those of a judge, whether he (or she)
is ruling on a motion for summary judgment or for a dir-
ected verdict" (citation and internal quotation marks
omitted)]; S.J. Capelin Assocs. v Globe Mfg. Corp., 34
N.Y.2d 338, 313 N.E.2d 776, 357 N.Y.S.2d 478 [1974]).
Defendant contends that plaintiffs' installation of a
railing after the Tenant moved out proves their know-
ledge of a defect or liability. Fish Gottesman swears,
however, that the installation of the railing was merely
part of an overall renovation of the Apartment made to
beautify it so that plaintiffs could get higher rent (Ruben-
stein Reply Aff., Exh. A, at 62). On summary judgment,
inferences must be taken in favor of the nonmoving party
and statements made in opposition to the motion are gen-
erally accepted as true (Patrolmen's Benevolent Assn. of

City of NY v City of New York, 27 N.Y.2d 410, 415, 267
N.E.2d 259, 318 N.Y.S.2d 477 [1971]; Wendling v 136 E.
64th St. Assocs., 128 A.D.2d 419, 513 N.Y.S.2d 119 [1st
Dept 1987]). Implicit in defendant's contention is that the
sworn statements and testimony that plaintiffs have sub-
mitted to support their defense that they did not know
that the Tenant fell, or that the staircase was defective,
are not credible under these circumstances. Credibility
determinations, however, are impermissible on summary
judgment (Forrest, 3 NY3d 295, 819 N.E.2d 998, 786
N.Y.S.2d 382, supra).
Furthermore, the cases upon which GNY relies con-
cerning the issue of reasonableness of delay in notice are
distinguishable inasmuch as in those cases it appears that
the respective policyholders knew that an accident had
occurred (see e.g. White v City of New York, 81 N.Y.2d
955, 615 N.E.2d 216, 598 N.Y.S.2d 759 [1993]; Empire
City, 35 N.Y.2d 9, supra [policyholder learned that man
was injured in accident occurring in vicinity of its road
excavation work site]; Steinberg v Hermitage Ins. Co.,
26 AD3d 426, 809 N.Y.S.2d 569 [2d Dept 2006] [in-
volving a fall on the front steps of the policyholder's
building and policyholder was notified of incident by in-
jured party's attorney]; Aetna Casualty & Sur. Co. v
Lanza, 70 A.D.2d 508, 415 N.Y.S.2d 859 [1st Dept 1979]
[policy holder struck pedestrian with automobile causing
hospitalization]; Security Mutual Ins. Co., 31 N.Y.2d 436,
293 N.E.2d 76, 340 N.Y.S.2d 902, supra [policyholders
knew of newspaper article mentioning their liability but
did not notify insurer or investigate]). For example, in
White (81 N.Y.2d 955, 615 N.E.2d 216, 598 N.Y.S.2d
759), the insured was aware that a child was injured from
a fall on a playground because the incident was reported
to the agent. Other cases where courts have found sum-
mary judgment in favor of the insurer, as a matter of law,
similarly involve knowledge of an accident on the part of
the policyholder (see e.g. Felix v Pinewood Builders,
Inc., 30 AD3d 459, 818 N.Y.S.2d 119 [2d 2006] [insured
aware of accident on work site, and received letter from
attorney]; Great Canal Realty Corp. v Seneca Ins. Co.,
13 AD3d 227, 787 N.Y.S.2d 22 [1st Dept 2004], revd 5
NY3d 742, 833 N.E.2d 1196, 800 N.Y.S.2d 521 [2005]
[premises owner informed a few weeks after the accident
of worker's fall from ladder during course of work]; Zad-
rima v PSM Insurance Cos., 208 A.D.2d 529, 616
N.Y.S.2d 817 [2d Dept 1994] [policy holder received ac-
tual notice of worker's fall from a ladder shortly after the
occurrence]).
In this case, the Tenant was found lying unclothed
on the floor in her own residence in the early morning
hours, and not at the bottom of a staircase in a building
hallway, on a sidewalk, or at a work site. Plaintiffs have
also submitted evidence demonstrating that prior to the
incident, the Tenant had paid her rent late due to a medic-
Page 120
al condition. In addition, plaintiffs provide evidence that
[*8] supports their assertion that the Tenant chose not to
affirmatively volunteer information about her medical
condition, or its cause. Such facts, assumed to be true for
purposes of this motion, implicate certain nuances con-
cerning privacy not found in cases cited to by defendant.
8
Plaintiffs' apparent failure to inquire into the Tenant's
condition and hospitalization by, as defendant suggests,
asking the Tenant's healthcare providers, friends and
family about the cause of the Tenant's hospitalization and
medical condition, does not, as a matter of law, render
plaintiffs' excuse unreasonable, but is merely a factor for
consideration by the trier of fact. Also an issue for the tri-
er of fact is whether, as defendant appears to imply,
plaintiffs' have not been truthful about their knowledge
concerning the Tenant's condition or whether the incident
involved the staircase.
8 Crediting as true the testimony of the Tenant,
the Building Superintendent and the Gottesmans,
as is required on summary judgment, plaintiffs
have provided evidence that the Tenant choose
not to divulge to the Cooperative Corporation's
board, her lessor, or the building staff the reasons
she was hospitalized. Under these circumstances,
GNY's suggestion that a commercial general liab-
ility policyholder should investigate the possibil-
ity of potential reportable claims by seeking in-
formation from a patient's healthcare provider(s)
about her medical condition does not warrant ser-
ious consideration.
"Summary judgment is a drastic remedy and should
not be granted where there is any doubt as to the exist-
ence of a triable issue of fact or where the factual issue is
arguable or debatable" (International Customs Assoc.,
Inc. v Bristol-Meyers Squibb Co., 233 A.D.2d 161, 162,
649 N.Y.S.2d 789 [1st Dept 1996]; see Andre v Pomeroy,
35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131
[1974]; Fradera v 124 Realty Co., 220 A.D.2d 258, 632
N.Y.S.2d 464 [1st Dept 1995]). It is where there is no ex-
cuse or mitigating factor that the issue of reasonableness
poses a legal question for the court, rather than an issue
for the trier of fact (see Paul Developers, LLC v Mary-
land Casualty Ins. Co., 28 AD3d 443, 816 N.Y.S.2d 75
[2d Dept 2006]). Under the circumstances found here,
the record reveals mitigating factors that bear on the is-
sue of reasonableness, and summary judgment on the is-
sue of notice is denied. 9
9 As an issue of fact has been raised regarding
the primary policy, plaintiffs' argument concern-
ing the umbrella policy, which GNY describes as
a "follow the form" policy, need not be addressed.
GNY also seeks summary judgment as against Asso-

ciates and Gottesman, arguing that neither is not an in-
sured under the GNY policies. The relevant provision at
issue in the primary policy states:
"SECTION II - WHO IS AN INSURED
1. If you are designated in the Declar-
ations as:
a. An individual, you and your spouse
are insureds, but only with respect to the
conduct of a business of which you are
the sole owner.
...
d. An organization other than a part-
nership, joint venture or limited liability
company, you are an insured. Your "exec-
utive officers" and directors are insured,
but only with respect to their duties as
your officers or directors. Your stockhold-
ers are also insured, but only with respect
to their liability as stockholders.
[*9] 2. Each of the following is also
an insured:
...
b. Any person (other
than your "employee"), or
any organization while act-
ing as your real estate man-
ager"
(Fried Aff., Exh. 1, at P-006). 10 There is no dispute that
the Cooperative Corporation is an insured.
10 In the umbrella policy, contains the following
provision:
F. "Insured" and "Named In-
sured"
...
2. "Insured" means the
"Named Insured" and also
...
(c) your executive officers,
directors and stockholders but
only within the scope of their du-
ties as such
Page 121
Fried Aff., Exh. 2, at P-019.
GNY argues that the Policy provides coverage for
Associates only in its capacity as a shareholder of the
Cooperative Corporation, and that Associates is not be-
ing sued therefore, but instead as the owner of the Apart-
ment, or the Tenant's landlord, for renting her an apart-
ment containing a defective staircase. Regarding Gottes-
man, GNY argues that he is being sued because of his
status as a principal of Associates, or as the manager of
the Apartment on behalf of Associates, and not arising
out of his relationship with the Cooperative Corporation
as its president.
In the amended complaint in the underlying action,
the Tenant alleges that she sustained serious bodily injury
as a result of a fall in the Apartment, that the fall was
caused by a defective and dangerous staircase in the
Apartment, and that the Cooperative Corporation, Asso-
ciates and Gottesman, respectively, owned, operated,
managed, controlled, maintained, and were responsible
for the Apartment, its appurtenances and fixtures, and are
liable for her alleged injuries.
In the first of the three causes of action of the Ten-
ant's complaint, the Tenant alleged that she was caused to
slip and fall off of a dangerous and defective staircase
because of an unsafe and dangerous condition, and that it
was the duty of the "said defendants to maintain the said
apartment in a safe condition. . . . " (Fried Aff., Exh 32, P
22). The Tenant alleged that the described incident was
caused by the negligence of the defendants and/or their
"servants, agents, employees and/or licensees in the own-
ership, operation, management, maintenance and control
of the aforesaid premises" (Fried Aff., Exh. 32, P 23).
In the second cause of action, the Tenant alleged that
the defendants permitted the alteration of the Apartment
to include a loft with a staircase, permitted the construc-
tion of the loft with a staircase in the Apartment, should
have known that the loft and staircase were negligently
and dangerously constructed, and failed to repair the dan-
gerous condition. In the third cause of action, the Tenant
alleged that the defendants were aware of certain viola-
tions on the premises regarding the subject loft and stair-
case and failed to take reasonable steps to repair and
clear those violations, allowing the Tenant to occupy the
premises although the violations were never repaired or
cleared. Regarding all of the causes of action, the Tenant
alleged that it was the duty of the defendants to maintain
the Apartment in a safe condition.
As previously stated, in addition to damages for
breach of the Policy, plaintiffs seek a [*10] declaration
that GNY is obligated to defend and indemnify them in
the Tenant's underlying personal injury action. "[A]n in-

surer's duty to defend [its insured] is exceedingly broad
and an insurer will be called upon to provide a defense
whenever the allegations of the complaint suggest . . . a
reasonable possibility of coverage" (BP Air Conditioning
Corp. v One Beacon Ins. Group, 8 N.Y.3d 708, 871
N.E.2d 1128, 2007 N.Y. LEXIS 1617, 840 N.Y.S.2d 302,
2007 WL 1826923 [2007] [citation and internal quotation
marks omitted]). Furthermore,
"The duty to defend [an] insured[ ] . . .
is derived from the allegations of the com-
plaint and the terms of the policy. If a
complaint contains any facts or allega-
tions which bring the claim even poten-
tially within the protection purchased, the
insurer is obligated to defend. A duty to
defend is triggered by the allegations con-
tained in the underlying complaint. The
inquiry is whether the allegations fall
within the risk of loss undertaken by the
insured [and, it is immaterial] that the
complaint against the insured asserts addi-
tional claims which fall outside the poli-
cy's general coverage or within its exclus-
ory provisions"
(ibid. [citation and internal quotation marks omitted]).
"If, liberally construed, the claim is within the em-
brace of the policy, the insurer must come forward to de-
fend its insured no matter how groundless, false or base-
less the suit may be" (Automobile Ins. Co. of Hartford v
Cook, 7 NY3d 131, 137, 850 N.E.2d 1152, 818 N.Y.S.2d
176 [2006] [citation and internal quotation marks omit-
ted]). "Thus, an insurer may be required to defend under
the contract even though it may not be required to pay
once the litigation has run its course" (ibid.); BP Air
Conditioning Corp. v One Beacon Ins., 8 N.Y.3d 708,
2007 WL 1826923, supra).
The narrower duty to indemnify arises only if the
claim for which the insured has been judged liable lies
within the policy's coverage (see Servidone Constr.
Corp. v Security Ins. Co. of Hartford, 64 N.Y.2d 419,
424, 477 N.E.2d 441, 488 N.Y.S.2d 139 [1985]). There-
fore, while the duty to defend is measured against the
possibility of recovery, "the duty to pay is determined by
the actual basis for the insured's liability to a third per-
son" (id.).
The party seeking a declaration of insurance cover-
age bears the burden of proving its entitlement to such
coverage, and it is not entitled to coverage if not named
as an insured or an additional insured on the face of the
policy (National Abatement Corp. v National Union Fire
Page 122
Ins. Co. of Pittsburgh, PA, 33 AD3d 570, 824 N.Y.S.2d
230 [1st Dept 2006]). An additional insured endorsement
is an addition, rather than a limitation, of coverage (Na-
tional Abatement Corp., 33 AD3d 570, 824 N.Y.S.2d 230,
supra). "It is also true that plaintiff's burden on a motion
for summary judgment is merely to raise a question of
fact as to the coverage under the policy" (Kidalso Gas
Corp. v Lancer Insurance Co., 21 AD3d 779, 781, 802
N.Y.S.2d 9 [1st Dept 2005]).
The parties dispute both the meaning, and the ap-
plication of the provisions of the Policy concerning of-
ficers, directors and shareholders. Plaintiffs argue that
the motion should be denied because GNY has not has
not provided evidence that Gottesman and Associates are
not insureds. They also argue that the Cooperative Cor-
poration, Associates and Gottesman have each been sued
by the Tenant on identical, extremely broad grounds, ren-
dering unpersuasive GNY's assertion that Associates and
Gottesman are not being sued in particular roles.
Plaintiffs further contend that Associates and Gottes-
man are insured under several theories. For instance,
they argue that Associates may have been sued as the
Cooperative Corporation's real [*11] estate manager, as
Associates was the managing agent of the Cooperative
Corporation from 1988 through April 2006. In support,
plaintiffs submit Gottesman's affidavit in which he
swears that during the period when Associates was the
Cooperative Corporation's managing agent, its responsib-
ilities included, among other things, locating and hiring
tradesmen such as plumbers, electricians and carpenters,
supervising the work of these tradesmen and purchasing
building and/or maintenance supplies.
Although the phrase "real estate manager" is not
defined in the Policy, plaintiffs contend that a reasonable
construction would include a person or business that
manages, or conducts the business affairs of a residential
rental or cooperative apartment building. It follows,
plaintiffs argue, that to the extent that Associates is sued
by the Tenant as an entity that managed and maintained
the premises, such allegations are consistent with certain
of Associates' responsibilities as the Cooperative Corpor-
ation's real estate manager.
In her complaint, the Tenant alleged that her injur-
ies were caused by the negligence of the defendants and
their agents (Fried Aff., Exh. 21 [Amended Verified
Complaint], 11 PP 23, 39). All of the defendants and their
agents were sued concerning the operation, management,
supervision and control of the premises. In addition, the
Tenant alleged that the defendants, among other things,
had a duty to maintain the Apartment in a safe condition,
permitted the alteration of the Apartment to include the
loft with a staircase, and the loft's construction, and were
aware of and failed to take reasonable steps to repair and

clear violations concerning the loft and staircase (Fried
Aff., Exh. 32 [Amended Verified Complaint], PP 22, 32,
38, 44, 45).
11 Exhibit 21 to the Fried affidavit contains both
the Tenant's original complaint, wherein only As-
sociates and Gottesman were named, and her
Amended Verified Complaint wherein the Co-
operative Corporation was added as a defendant.
In Morales v Allstate Insurance Company (170
A.D.2d 419, 419, 566 N.Y.S.2d 295 [1st Dept 1991]), the
First Department interpreted an insurance policy which
provided for coverage for the named insured's "real es-
tate manager," a phase undefined in the policy. Stating
that "any ambiguity in the insurance contract is to be re-
solved in favor of the insured," the Court found that the
record demonstrated that the plaintiff, who managed a
building on behalf of the title owner, was covered under
the policy (id.).
Although GNY disputes plaintiffs' assertion that As-
sociates was the real estate manager for the Cooperative
Corporation, arguing, based on her deposition testimony,
that Fish Gottesman performed those management duties
as vice president of the Cooperative Corporation, in light
of Gottesman's sworn statement that Associates was the
managing agent for the Cooperative Corporation, that is-
sue is one of fact. Fish Gottesman's testimony is merely
conflicting evidence, and GNY's motion is denied as to
Associates.
Plaintiffs urge that Associates is also entitled to cov-
erage as a shareholder of the Cooperative Corporation.
Plaintiffs interpret the Policy as insuring the Cooperative
Corporation's shareholders, officers, and directors
whenever their acts or omissions are such that the cor-
poration is exposed to liability. Consistent with this inter-
pretation, plaintiffs argue that, to the extent that Associ-
ates did something negligent in connection with a defect
in the Apartment, it has exposed the Cooperative Corpor-
ation, the owner of the apartment, to liability as much as
itself, and is therefore a covered entity under the Policy.
[*12] To support this interpretation of the Policy,
plaintiffs cite to several cases in which courts have inter-
preted liability insurance policies containing provisions
similar to those here as providing coverage for the of-
ficers, directors and shareholders of corporations. In
those cases, courts have generally interpreted such provi-
sions providing coverage to officers or directors who
were sued for acts or omissions related to their role with
their respective corporations (see Zavota v Ocean Acci-
dent & Guarantee Corp., 408 F.2d 940 [1st Cir 1969]),
or where shareholders or officers of corporations were
sued because the corporations were no longer viable tar-
gets due to, for example, dissolution (see Turner & Ne-
Page 123
wall, PLC v American Mutual Liab. Ins. Co., 1985 U.S.
Dist. LEXIS 23777, 1985 WL 8056 [D DC 1985]; Em-
ployers Insurance of Wausau v Duplan Corp., 1999 U.S.
Dist. LEXIS 15368, 1999 WL 777976 [SD NY 1999]). 12
12 Plaintiffs seek an overly expansive interpret-
ation of Zavota (408 F.2d 940), in which an exec-
utive was sued for his conduct in operating a
crane and the Court found that he was covered
under the liability policy as an officer or director,
despite that his conduct as a crane operator was
not executive in nature. In discussing why a cor-
poration might seek insurance for its executives,
the Court discussed how a corporate officer is a
likely target of litigation, and the purpose of the
insurance is their protection. In Zavota, however,
there was no dispute that the officer was acting
on behalf of the corporation. Similarly, in Turner
& Newall, PLC (1985 WL 8056, supra), the de-
fendant-shareholder was sued in its capacity as
shareholder because the better target for the tort
claims had previously been dissolved. Although
the court did not rely on an alter ego analysis, it
mentioned that the shareholder provided evidence
that the provision was developed to provide in-
surance for an officer sued as analter ego of the
corporation.
Generally a corporation's director or officer who
takes part in the commission of a tort by the corporation
may be held personally and individually liable for his or
her participation in tortious acts even if he or she derived
no personal benefit, or acted on behalf of and or in the
name of the corporation (Haig, 4B Commercial Litiga-
tion in New York State Courts § 87:45.50 [West's NY
Prac Series 2005 (2d ed), 2007 Pocket Part, at 50]). Of-
ficers and directors of residential cooperative corpora-
tions are, many times, building residents who serve as
volunteers. 13 Thus, cooperative corporations, like other
corporations that purchase commercial general liability
policies providing coverage to officers, directors and
shareholders, seek to protect these parties against certain
risks that may arise by virtue of their position with, or
conduct and duties on behalf of, the corporation. The
Policy may be interpreted as providing coverage to an of-
ficer, director, or shareholder who is sued in relation to
his or her conduct that is on behalf of the corporation, or
inextricably linked to his or her duty, role or position on
behalf of the corporation, or where a shareholder is tar-
geted as an alter ego, or similarly targeted.
13 "The cooperative apartment regime . . . com-
bines three forms of property interest:
(1) a fee interest (obtained by the
 Page 124

corporation), and habitable condition. In addition, the complaint may

(2) an ownership interest in
personal property via stock owner-
ship in such corporation, plus
(3) a leasehold estate (ob-
tained by shareholders).
The realty relationship
between a shareholder-proprietary
tenant and the corporation is a
landlord-tenant relationship.
However, it differs from a tradi-
tional landlord-tenant relationship
in that (a) the tenant is also partial
owner of the corporation, and, to
that extent, has a voice in manage-
ment of the property . . . "
(Di Lorenzo, New York Condominium and Coop.
Law § 1:2)
While Associates, as the Tenant's lessor, may also be
liable to the Tenant, for its negligence, if any, based on
that role, the allegations of the complaint are extremely
broad, and may also [*13] implicate liability that the
Tenant was alleging that Associates had as a shareholder
for, as an example, not maintaining the premises in a safe
also implicate duties that the Tenant was alleging Gottes-
man had as the president of the Cooperative Corporation
to investigate and perhaps ensure the abatement of a po-
tentially hazardous condition or violations about which
he had knowledge. Thus, liberally construed, the Tenant's
claim is within the embrace of the policy, despite that the
allegations may ultimately be baseless.
Plaintiffs' argument that Gottesman was the man-
aging agent or real estate manager as the person that
managed and maintained the Apartment on behalf of As-
sociates, however, falls short as Gottesman swears in his
affidavit that Associates was the managing agent. Al-
though the primary policy provides coverage for the Co-
operative Corporation's "real estate manager," there is
nothing therein to indicate that also covered are the real
estate managers' agents, employees or representatives.
In light of the issues of fact, discussed above, con-
cerning notice of the occurrence, which is a threshold is-
sue concerning GNY's duty, if any, to defend or indemni-
fy plaintiffs, GNY's motion for summary judgment may
not be granted, and a declaration must await resolution of
the issues of fact raised here.
Accordingly, it is
ORDERED that defendant's motion for summary
judgment is denied.

43 of 55 DOCUMENTS

[*1] Costantino Decorato, as Administrator of the Estate of CONSTANTINO DEC-

ORATO, deceased, and COSTANTINO DECORATO, individually, Plaintiffs,
against Cozzoli Brothers, LLC, TELCO DISCOUNT OF AVENUE U, INC., and
TASK FORCE SECURITY & INVESTIGATIONS, INC., Defendants.

39433/04

SUPREME COURT OF NEW YORK, KINGS COUNTY

2007 NY Slip Op 51347U; 16 Misc. 3d 1108A; 841 N.Y.S.2d 825; 2007 N.Y. Misc. LEX-
IS 4831

July 10, 2007, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND
WILL NOT BE PUBLISHED IN THE PRINTED OFFI-
CIAL REPORTS.
CORE TERMS: security guard, landlord, lease, special
employee, summary judgment, repair, issues of fact, tri-
able, manager, armed, front, supervisor, robbery, tenant,
gun, matter of law, cross-claims, discount, leased, cus-
tomer, cause of action, business hours, criminal activity,
assailant, homicide, planned, station, shell, gates, rear
HEADNOTES

[**1108A] [***825] Workers' Compensation--Ex-
istence of Employer-Employee Relationship--Special
Employee. Negligence--Duty--Premises Security.
JUDGES: HON. Arthur M. Schack, J.S.C.
OPINION BY: Arthur M. Schack
OPINION
Arthur M. Schack, J.
This action resulted from a brutal armed robbery and
homicide at 109 Avenue U, Brooklyn, New York. The
premises were then owned by defendant Cozzoli Broth-
ers, LLC (Cozzoli), an out of possession landlord.
Cozzoli leased the premises to defendant Telco Discount
of Avenue U, Inc. (Telco), who operated a discount vari-
ety store at the Avenue U location. Telco contracted with
defendant Task Force Security & Investigations, Inc.
(Task Force) for security services, including the presence
of a security guard at the store.
It is uncontroverted that decedent Constantino Dec-
orato (Tino), was shot in his stomach, inside the
premises, by an unknown assailant during a robbery at
approximately 7:00 P.M. on July 23, 2004. Tino died of
his wounds later that evening. He was employed by T &
E Stores, Inc. (T & E), Telco's parent company. Tino's es-
tate sued defendants for negligent security and wrongful
death, and his father sued for loss of his son's services.
There are two motions before the Court. First, de-
fendant Telco moves for summary judgment, pursuant to
CPLR Rule 3212, dismissing the complaint and all cross-
claims against it, alleging that: Telco, as Tino's "special
employer" granted death benefits to Tino's estate pursu-
ant to the exclusive remedy of the Workers' Compensa-
tion Law; [*2] and, Telco cannot be responsible for an
unforeseeable violent homicide. Defendant Cozzoli also
moves for summary judgment, pursuant to CPLR Rule
3212, dismissing the complaint and all cross-claims
against it, alleging that as an out of possession landlord,
and pursuant to the terms of its lease with Telco, it is not
responsible for security at the premises and Tino's tragic
death.
In reviewing the facts in this case, and applying ap-
plicable law, the Court denies Telco's motion for sum-
mary judgment. Tino was not a "special employee" of
Telco. Thus, Tino's estate has a cause of action against
Telco. Telco assumed the duty of providing premises se-
curity, which appeared inadequate. Task Force's security
guard disappeared during the July 23, 2004 tragic holdup
and homicide. Once a party undertakes a duty, due care
must be exercised. There are triable issues of fact as to
whether Telco's attempts to provide security were negli-
Page 125
gent. With respect to defendant Cozzoli, there are no tri-
able issues of fact. Cozzoli, the out of possession land-
lord, was not responsible for premises' security at 109
Avenue U. Cozzoli's motion for summary judgment is
granted.
Background
According to the affidavit of Gerald Weinstein, T &
E's Controller [exhibit A of Telco's motion], T & E is
owned by two brothers, Ted and Elliott Serure. T & E op-
erates seven stores in Brooklyn, Staten Island, and
Queens. Three stores are directly operated by T & E, and
the other stores are operated through subsidiaries, includ-
ing Telco.
Mr. Weinstein states in P 12 of his affidavit that
"from a home office location at 6628 18th Avenue in
Brooklyn, T & E uniformly provided payroll, insurance
(including workers compensation insurance), financial,
accounting, and organizational management to each of
the three operating subsidiaries including Defendant
Telco Discount of Avenue U." Mr. Weinstein makes it
clear in his affidavit and in his EBT, pp. 14-22 [exhibit B
of Telco's motion], that while Telco had its own regular
staff, they were all paid by T & E. Further, T & E ac-
quired all inventory for sale, paid all expenses, including
the rent to Cozzoli, and contracted for an unarmed secur-
ity guard with Task Force. Mr. Weinstein states, in P 23
of his affidavit, that "[e]ach and every cost of doing
business of Telco Discount of Avenue U was paid by T &
E, out of T & E's own bank account." He then declares,
in P 5 of his affidavit attached to Telco's reply affirma-
tion in support of the motion, that Telco is "essentially a
corporate shell, all of whose affairs were operated and
paid for by T & E." Additionally, Mr. Weinstein claims
that Tino did not report to T & E, but to Telco's manager,
Svetlana Makayev (Lana) and her assistant manager,
Hussain Asmat. However, both Ms. Makayev and Ms.
Asmat were T & E employees, like Tino. Ms. Makayev
confirms that she was a T & E employee, at p. 7 of her
EBT [exhibit C of Telco's motion].
Attached to Mr. Weinstein's affidavit is the New
York State Workers' Compensation Board's Form C-2 in-
cident report, prepared by Mr. Weinstein. Mr. Weinstein
states that Tino's employer is "T & E Stores, Inc.," not
Telco. Further, the nature of the injury was [*3] "gun-
shot wound to stomach." It states that at the time of the
incident the employee was "lowering gates to front of
store." In answer to "how did the accident or exposure
occur," Mr. Weinstein stated:
3 armed, masked robbers forced Con-
stantino Decorato back into the store.
They ran down the steps to the basement.

Our manager was in the office. She
pressed the main panic button and
summoned the police/EMS. Another em-
ployee Boris Dekhtyar was struck over
the head with the assailant's gun.
The assailant was forcing a customer
and Mr. Decorato to the rear of the store
with the gun in the back of the customer,
when the gun went off grazing the cus-
tomer and hitting Mr. Decorato. He died
shortly after arriving at Coney Island Hos-
pital.
Police report No. UF61 64969. 62nd
Precinct. [Sic]
According to the depositions of the store manager,
Lana, and Tino's twin sister, Silvana Decorato (Silvana)
[exhibit D of Telco's motion], a cashier at the store, each
day at closing time the store followed various proced-
ures, which included bringing into the store coin-oper-
ated kiddie rides about 30 minutes prior to closing, and
then lowering various gates about 15 minutes prior to
closing.
Lana testified that Tino worked at the Avenue U
store as the Receiving Manager [EBT at p. 59]. She testi-
fied that there was a central alarm system in her office, at
the rear of the store [pp. 41-42]. She said, at p. 47, lines
11-13 that Task Force "had a guard stationed by the door,
checking bags, overseeing the floor and making sure
that everything goes smoothly." The guard usually was
an unarmed, uniformed man named "Joseph" [pp. 47-49].
Tino's duties included assisting with closing procedures,
making sure that customers left the store and bringing
down and locking gates in the front of the store [p. 63].
At the time of the incident, Lana was behind a cash re-
gister when she saw fighting in the front of the store [pp.
71-72]. She stated at p. 71, l. 24-p. 72, l. 4, that "I was
behind the register when I saw a fighting in front of the
store [sic]. I believe there were three males wearing yel-
low rain jackets, masks on the faces and duct tape on
them all, and I saw my boys were fighting with them."
Lana described the three perpetrators as wearing black
ski masks, having hoods covering their heads, and their
mouths covered with duct tape [pp. 76-77]. Lana sub-
sequently ran to her manager's office in the rear of the
store, locked the door behind her, rang the alarm button
and called the police [pp. 85- 88].
Lana testified, with respect to the actions of Joseph
the security guard, at p. 102, l. 11-p. 103, l. 9:
Q. Prior to seeing these criminals come
Page 126
to the store and fight with the employees,
when was the last time that you saw
Joseph, the security guard?
A. He was in the front, I saw him
there. [*4]
Q. Did you see Joseph before the
criminals came into the store?
A. Yes.
Q. Did you see Joseph while the
criminals were in the store?
A. No.
Q. What, if anything, was Joseph do-
ing in the front of the store when you last
saw him?
A. Just standing there.
Q. While you witnessed the fight, did
you ever see Joseph?
A. No.
Q. While you were in the back of the
manager's room, did you ever see Joseph?
A. No.
Tino's sister, Silvana, testified in her EBT that she
was a cashier at the time of the incident [p. 9]. When the
three masked men entered the store, she first saw them in
the front of the store beating a customer and then Boris,
the stock boy [p. 16]. Silvana and the other cashiers went
to the receiving room in the rear of the store to gain ac-
cess to the basement [p. 34]. She was asked, at p. 34, l.
17, "Do you know where Lana was when these two
people were beating Boris?" Silvana replied at p. 34, l.
19, "Hiding in the office." At the end of the incident,
when emerging from the basement, she saw her brother
Tino on the floor near the manager's office [pp. 42-43].
Tino was unresponsive to her, other than opening his
eyes [pp. 45-46]. When asked about Joseph the security
guard, at p. 66, lines 11-17, she testified:
Q. The security guard who you said was
upstairs when the incident took place, did
he also join you downstairs?
A. No.
Q. Did you ever see him again after
the incident when you came up?
A. No.

Mr. Weinstein, in P 29 of his affidavit in support of
the motion, states that "[e]xcepting occasional surrepti-
tious and non-violent shoplifting, there was no history of
criminal activity whatsoever at the Avenue U Telco
Stores location." In his reply affirmation in support of the
motion, in P 8, plaintiff's counsel states that through the
affidavit of Mr. Weinstein, and the EBT's of Mr. Wein-
stein, Lana, and Silvana, "there were no history of prior
crime such as would be legally necessary to support the
existence of a duty as claimed by Plaintiffs." Mr. Wein-
stein and plaintiff's counsel fail to mention United States
v Skowronski, 968 F.2d 242 (2d Cir 1992), which af-
firmed the conviction of Richard Skowronski's violation
of the Hobbs Act, 18 USC § 1951, for engaging in a con-
spiracy to obstruct, delay and affect commerce, by rob-
bing the Telco Avenue U store, in which Tino was later
killed. Skowronski, who was sentenced to 57 months im-
prisonment, was caught with his co-conspirators by the
FBI through the use of court-authorized wiretaps. In de-
scribing the planned robbery, the Court said, at 244:
[*5] [t]he evidence showed the following.
In late 1989, Richard Skowronski, then
a college student, worked part-time at the
Telco Jewelry ("Telco") store on Avenue
U in Brooklyn, New York. The store car-
ried an inventory worth about $ 300,000;
when closed, it was protected by security
gates lowered over the door and display
windows. From Thanksgiving through the
end of the Christmas season, the store re-
mained open until 9:00 p.m., and during
evening business hours it was protected
by security guards. The store was man-
aged by Skowronski's mother. In addition
to Skowronski and his mother, it em-
ployed three women, and the owner testi-
fied that store policy normally required
that at least three employees be present at
all times. Skowronski's mother, called to
testify in his behalf, testified that at all
times during the Christmas season there
were at least four employees plus a guard
in the store, and that at times the total rose
to seven.
While Skowronski and his co-conspirators were caught
before the commission of the planned robbery, there
were planning to use force if necessary. The Court held,
at 249, that:
[T]he evidence at trial included ample
direct and circumstantial evidence that the
Page 127
coconspirators had intended to be armed
and to display guns when they robbed the
Telco store. First, it was inferable that
they planned to be armed from the fact
that they knew that (a) noncooperating
persons, i.e., persons other than Skowron-
ski, would be present, and (b) the store
employed security guards . . . Finally, in
recorded conversations, Tinnirello and
DiSomma [co-conspirators] discussed
their possession of "murrays," a code
word the jury could infer meant guns.
Defendant Cozzoli owned the 109 Avenue U
premises where Telco ran its business. Robert Cozzoli,
Cozzoli's Secretary, in his EBT [exhibit I of Cozzoli's
motion] testified, at p.15, that Telco had rented the
premises from the early 1980's. In his affidavit attached
to Cozzoli's motion [exhibit J of Cozzoli'a motion], Mr.
Cozzoli states that Cozzoli had no involvement with the
operations of the Telco store and did not control or main-
tain security at the premises.
The Lease in effect at the time of the incident was a
standard store lease, giving possession to Telco. Under
various clauses of the Lease, Cozzoli was not responsible
for maintenance and repairs. § 48 of the Lease sated:
Tenant at its own cost and expense is re-
sponsible for all maintenance and repairs
for the leased premises including without
limitation the heating, electrical, plumb-
ing and mechanical systems, the roof and
sidewalks. Landlord shall be responsible
for all structural maintenance [*6] and
repairs for the leased premises except for
the roof, but Landlord must Tenant with
the existing guaranty on the roof.
Cozzoli, as landlord, could only enter the premises dur-
ing reasonable business hours, except for an emergency.
§ 63 of Lease stated:
In the event Landlord requires access to
the premises, Landlord shall be permitted
on the premises during reasonable busi-
ness hours of Tenant except in the case of
emergency where Landlord shall be per-
mitted to enter the premises at such time
as may be necessary. Where feasible,
Landlord agrees to request access to the
premises by Certified Mail to Tenant set-
ting forth the date and time of such ac-
cess.

§ 8 of the Lease provides that "Owner or its agent shall
not be liable . . . for any injury or damage resulting from
any cause of whatsoever nature, unless caused by or due
to the negligence of Owner, its agents, servants or em-
ployees." § 43 of the Lease states, "Tenant shall indemni-
fy and hold harmless the Landlord from and against any
and all claims, suits . . . to persons or property which
may result from the use, occupancy, operation or main-
tenance of the demised premises."
Summary Judgment Standard
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 elim-
inate any material issues of fact from the case. See Al-
varez v Prospect Hospital, 68 N.Y.2d 320, 324, 501
N.E.2d 572, 508 N.Y.S.2d 923 (1986); Zuckerman v City
of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427
N.Y.S.2d 595 (1980); Sillman v Twentieth Century-Fox
Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165
N.Y.S.2d 498 (1957). Failure to make such a showing re-
quires denial of the motion, regardless of the sufficiency
of the opposing papers. Matter of Redemption Church of
Christ v Williams, 84 A.D.2d 648, 649, 444 N.Y.S.2d 305
(3rd Dept 1981); Greenberg v Manlon Realty, 43 A.D.2d
968, 969, 352 N.Y.S.2d 494 (2nd Dept 1974); Winegrad v
New York University Medical Center, 64 N.Y.2d 851, 476
N.E.2d 642, 487 N.Y.S.2d 316 (1985).
CPLR 3212 (b) requires that for a court to grant
summary judgment the court must determine if the
movant's papers justify holding as a matter of law "that
there is no defense to the cause of action or that the cause
of action or defense has no merit." The evidence submit-
ted in support of the movant must be viewed in the light
most favorable to the non-movant. Marine Midland
Bank, N.A. v Dino & Artie's Automatic Transmission
Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 (2d Dept 1990).
Summary judgment shall be granted only when there are
no issues of material fact and the evidence requires the
court to direct judgment in favor of the movant as a mat-
ter of law. Friends of Animals, Inc., v Associated Fur
Mfrs., 46 N.Y.2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790
(1979).
The decedent was not a "special employee" of Telco
In examining the evidence in the light most favor-
able to the non-movant plaintiffs, there are triable issues
of fact with respect to whether defendant Telco was neg-
ligent in providing security at the store for its failure to
provide due care. Before analyzing that issue, the Court
determines that Tino was not a "special employee" of
Page 128
Telco. This allows [*7] plaintiffs to pursue their causes
of action against Telco.
It is undisputed that Tino's estate received funeral
benefits from the New York State Workers' Compensa-
tion Board. Martin Minkowitz in his Practice Comment-
aries (McKinney's Cons Laws of NY, Book 64 WCL §
29) explains that "[a]n employee cannot sue his employer
or a fellow employee for an accidental injury, which
arose out of and in the course of the employment. This is
prohibited by the exclusive remedy doctrine (see §§ 11
and 29 (6) WCL)." Telco claims that Tino was its "spe-
cial employee" and the Workers' Compensation benefits
received through T & E as Tino's "general employee,"
were the exclusive remedies available by decedent's es-
tate and father against Telco.
The Court of Appeals, in Thompson v Grumman
Aerospace Corporation, 78 N.Y.2d 553, 585 N.E.2d 355,
578 N.Y.S.2d 106 (1991), analyzed the distinctions
between a "general employee" and a "special employee."
The court, at 557, instructed that:
We have consistently found as a general
proposition that a general employee of
one employer may also be in the special
employ of another, notwithstanding the
general employer's responsibility for pay-
ment of wages and for maintaining work-
ers' compensation and other employee be-
nefits (Stone v Bigley Bros., 309 NY 132,
127 N.E.2d 913; Irwin v Klein, 271 NY
477, 3 N.E.2d 601; Murray v Union Ry.
Co., 229 NY 110, 112-113, 127 N.E. 907;
Matter of Schweitzer v Thompson & Nor-
ris Co., 229 NY 97, 99, 127 N.E. 904; see
also, Cameli v Pace Univ., 131 A.D.2d
419, 516 N.Y.S.2d 228). A special employ-
ee is described as one who is transferred
for a limited time of whatever duration to
the service of another (Brooks v Chemical
Leamon Tank Lines, Inc., 71 A.D.2d 405,
407, 422 N.Y.S.2d 695). General employ-
ment is presumed to continue, but this
presumption is overcome upon clear
demonstration of surrender of control by
the general employer and assumption of
control by the special employer (Stone v
Bigley Bros., supra, at 140-143 [and cases
cited therein]; Sweet v Board of Educ.,
290 NY 73, 76-77, 48 N.E.2d 266; Irwin v
Klein, supra, at 484-485; Ramsey v New
York C.R. Co., 269 NY 219, 224, 199 N.E.
65). [Emphasis added]

Further, the Thompson v Grumman Court instructed,
at 557-558, that "the determination of special employ-
ment status may be made as a matter of law where the
particular, undisputed critical facts compel that conclu-
sion and present no triable issue of fact." In the instant
action, it is crystal clear that Tino was always under the
control of T & E and reported to a T & E supervisor. It is
undisputed that all the employees working at the Telco
store on Avenue U were employed by T & E, not Telco.
Tino reported to his manager, Lana, also an employee of
T & E. T & E's Controller, Mr. Weinstein, declared in P
5 of his affidavit attached to Telco's reply affirmation in
support of the motion, that Telco is "essentially a corpor-
ate shell, all of whose affairs were operated and paid for
by T & E." Tino was never lent to Telco and therefore
was not a "special employee" of Telco, the "corporate
shell," set up to limit T & E's liability at the 109 Avenue
U store. [*8] Telco has failed to clearly demonstrate that
T & E surrendered control of Tino and that Telco as-
sumed control of Tino. See Kramer v NAB Constr. Corp.,
250 A.D.2d 818, 671 N.Y.S.2d 1015 (2d Dept 1998);
Martin v Baldwin Union Free School Dist., 271 A.D.2d
579, 706 N.Y.S.2d 712 (2d Dept 2000); Hintze v
Brookhaven Nat. Laboratory, 278 A.D.2d 456, 718
N.Y.S.2d 406 (2d Dept 2000).
The Appellate Division, Second Department, in
Marrero v Akam Associates, LLC, 39 A.D.3d 716, 717,
834 N.Y.S.2d 285 (2007), held that "the key to the de-
termination of whether a special employment relation-
ship exists is who controls and directs the manner, de-
tails, and ultimate result of the employee's work (see
Thompson v Grumman Aerospace Corporation, supra at
558; Martin v Baldwin Union Free School Dist., supra)."
In Thompson v Grumman, David Thompson, a sheet
metal mechanic, was employed by ATS, which provided
employees to Grumman. ATS paid Thompson and billed
Grumman, pursuant to a written agreement. Thompson
acknowledged that Dan Schmidt, a Grumman supervisor,
directed his work. After being injured at Grumman's
Bethpage, New York plant, Thompson received workers'
compensation benefits based upon his ATS employment.
Thompson sued Grumman for negligence. Grumman
claimed that Thompson was its "special employee." Ulti-
mately, Grumman prevailed in the Court of Appeals,
with the Court finding, at 558-559, that while ATS paid
Thompson and provided benefits to him:
[a]ll essential, locational and commonly
recognizable components of the work re-
lationship were between Thompson and
Grumman. As soon as ATS hired
Thompson, it permanently assigned him
exclusively to Grumman's plant on a full-
time basis for the entire year prior to the
Page 129
work-related accident at Grumman's facil-
ity. Thompson considered a Grumman su-
pervisor to be his boss and he knowingly
accepted the terms of his exclusive work
at Grumman; thus, he was aware of and
consented to his special employee status .
. . He reported daily to this Grumman su-
pervisor only, who regularly directed, in-
structed, assigned, supervised and con-
trolled his work duties. The work
Thompson performed was solely in fur-
therance of Grumman's business at its fa-
cility. He was recruited and hired by ATS
solely to meet Grumman's specified em-
ployee needs. He could not be reassigned
by ATS and his assignment to Grumman
could be terminated only by Grumman.
In the instant action, Tino reported to a T & E super-
visor, Lana, who controlled and directed his work duties.
He worked at Telco to further the needs of T & E. T & E
had the power to reassign Tino and terminate Tino. Telco
had no supervisors present at the Avenue U location. In
fact, Telco, the "corporate shell," had no employees. T &
E owned Telco and created it to limit its liability at the
Avenue U location. Thus, Telco cannot be the "special
employer" of Tino or any of the other T & E employees
at the Telco store. There are no triable issues of fact as to
whether Tino was Telco's "special employee." Tino, as a
matter of law, was not a "special employee" of Telco. He
was only [*9] a "general employee" of T & E. See
Schramm v Cold Spring Harbor Laboratory, 17 AD3d
661, 793 N.Y.S.2d 530 (2d Dept 2005); Alvarez v Cun-
ningham Assocs., L.P., 21 AD3d 517, 800 N.Y.S.2d 730;
Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003,
821 N.Y.S.2d 268 (2d Dept 2006). Therefore, plaintiffs
are not precluded by the Workers' Compensation Law
from suing Telco.
Triable issues of fact about premises security provided
by Telco
With respect to Telco's attempts to provide security
at the premises, there are triable issues of fact as to
whether Telco, the lessee in possession, had a duty to
provide security because of its knowledge of prior crim-
inal activity at the premises. Further, in providing secur-
ity personnel for the premises, there are triable issues of
fact as to whether Telco provided premises security with
due care.
T & E's Controller, Mr. Weinstein, testified to "occa-
sional and surreptitious non-violent shoplifting" at the
premises. Interestingly, Mr. Weinstein and T & E's coun-
 Page 130

sel failed to present the Court with any knowledge of the
planned armed robbery of the premises by Richard
Skowronski and his criminal cohorts. The Court, in
United States v Skowronski, supra, at 244, noted that the
store was protected "by security guards," as opposed to
the one security guard, Joseph, who disappeared during
the instant incident. Further, at 249, the Court held that
"the coconspirators had intended to be armed and to dis-
play guns when they robbed the Telco store."
In Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507,
407 N.E.2d 451, 429 N.Y.S.2d 606 (1980), the plaintiff
was shot in the back by an unknown assailant while sign-
ing a guest register at an unattended desk at about 7:15
P.M. in a midtown Manhattan office building owned and
operated by defendants. Usually an attendant would be
present at the desk, but that evening the attendant was
performing janitorial duties somewhere else in the build-
ing. Supreme Court, Nassau County dismissed plaintiff's
negligent security claim, and the Appellate Division,
Second Department affirmed. The Court of Appeals re-
versed, finding that plaintiff had made a prima facie case
for negligence, reinstated the complaint and ordered a
new trial. The plaintiff had presented evidence of prior
criminal activity in the building. The Court held, at 519-
520:
The eminent legal scholar, Judge Benjamin N. Car-
dozo, in Glanzer v Shepard, 233 NY 236, 239, 135 N.E.
275 (1922), instructed that, "[i]t is ancient learning that
one who assumes to act, even though gratuitously, may
thereby become subject to the duty of acting carefully, if
he acts at all." The Nallan Court, at 522, noted that the
formula for determining when "one who assumes a duty
to act, even though gratuitously, may thereby become
subject to the duty of acting carefully" was "articulated
by Chief Judge Cardozo as follows" in H. R. Moch Co. v
Rensselaer Water Co., 247 NY 160, 167-168, 159 N.E.
896 (1928):
If conduct has gone forward to such a
stage that inaction would commonly res-
ult, not negatively merely in withholding
a benefit, but positively or actively in
working an injury, there exists a relation
out of which arises a duty to go forward . .
. The query always is whether the putative
wrongdoer has advanced to such a point
as to have launched a force or instrument
of harm, or has stopped where inaction is
at most a refusal to become an instrument
for good.

Although there was no indication in the

record that any of these crimes took place
in the lobby area, where plaintiff Nallan
was shot, a rational jury could have found
from the history of criminal activity in the
other parts of the building that a criminal
incident in the lobby was a significant,
foreseeable possibility. If the jury found
that defendants knew or had reason to
know of the prior crimes in the building
and further found that defendants should
have anticipated a risk of harm from crim-
inal activity in the lobby, it properly could
have gone on to conclude that defendants
failed in their obligation to take reason-
able precautionary measures to minimize
the risk and make the premises safe for
the visiting public.
Further the Nallan Court, at 520-522, on the subject
of undertaking a duty to [*10] provide security, noted
that if the possessor of the premises voluntarily provided
a security guard, the possessor of the premises may be li-
able for either the absence of the security guard or the
negligent performance of the security guard. During the
incident resulting in Tino's homicide, Telco's security
guard disappeared.
See Kaplan v Dart Towing, 159 A.D.2d 610, 612, 552
N.Y.S.2d 665 (2d Dept 1990); Gordon v Muchnick, 180
A.D.2d 715, 579 N.Y.S.2d 745 (2d Dept 1992); Alvino v
Lin, 300 AD2d 421, 751 N.Y.S.2d 585 (2d Dept 2002);
Mirza v Metropolitan Life Ins. Co., 2 AD3d 808, 809,
770 N.Y.S.2d 384 (2d Dept 2003); Vetrone v Ha Di
Corp., 22 AD3d 835, 837, 803 N.Y.S.2d 156 (2d Dept
2005); Demshick v Community Housing Management
Corp., 34 AD3d 518, 520, 824 N.Y.S.2d 166 (2d Dept
2006).
The Court of Appeals in Parvi v City of Kingston, 41
N.Y.2d 553, 559, 362 N.E.2d 960, 394 N.Y.S.2d 161
(1977), held that "[t]he case law is clear that, even when
no original duty is owed to the plaintiff to undertake af-
firmative action, once it is voluntarily undertaken, it
must be performed with due care (Marks v Nambil Re-
alty Co., 245 NY 256, 258, 157 N.E. 129; Glanzer v
Shepard, 233 NY 236, 239, 135 N.E. 275; Zelenko v
Gimbel Bros., 158 Misc 904, 287 N.Y.S. 134, affd 247
AD 867, 287 N.Y.S. 136)." See Fonville v N.Y. City
Health and Hosps. Corp., 300 A.D.2d 623, 624, 754
N.Y.S.2d 295 (2d Dept 2002); Kowal v Deer Park Fire
Dist., 13 AD3d 489, 787 N.Y.S.2d 352 (2d Dept 2004);
Bryant v State, 23 A.D.3d 592, 593, 805 N.Y.S.2d 634 (2d
Dept 2005). It is clear that Telco undertook affirmative
action to provide a security guard at its 109 Avenue U
store. However, a thorough review of the moving papers

leaves the Court with triable issues of fact. What
happened to Joseph the security guard during the July 23,
2004 crime? Where did Joseph go? Did Telco provide se-
curity at 109 Avenue U with due care?
Telco, in providing a security guard at the premises,
should have heeded the Court's admonition in Gross v
Empire State Bldg. Assocs., 4 AD3d 45, 46, 773 N.Y.S.2d
354 (1st Dept 2004):
We live in an uncertain and sometimes
unpredictable world
seemingly filled with daily reports of
random acts of violence, [*11] including
bombings, shootings and mayhem on our
public streets, in work sites, post offices,
fast food restaurants, federal office build-
ings, schools, subways and commuter
trains and, of course, the World Trade
Center . . . Security has become a pervas-
ive aspect of everyday life.
Cozzoli is not liable for premises' security
It is clear from the Lease between defendant
Cozzoli, the landlord, and defendant Telco, the commer-
cial tenant, that Cozzoli is out of possession. Pursuant to
the Lease, Cozzoli reserved rights to enter for structural
repairs only during business hours and where feasible
after requesting access by certified mail, or could enter
during an emergency. Telco was responsible for most
maintenance and repairs. Absent a statutory duty, the fact
that Cozzoli had reserved its right to inspect and repair is
not enough to make Cozzoli liable for the July 23, 2004
tragedy. Less than two months ago, in Nikolaidis v La
Terna Restaurant, 40 AD3d 827, 835 N.Y.S.2d 726 (2d
Dept 2007), the Court held that, "[a]n out-of-possession
property owner is not liable for injuries that occur in the
property
unless the owner has retained control
over the premises or is contractually ob-
ligated to perform maintenance and re-
pairs." Further, the Court instructed, the
"[r]eservation of a
right to enter the premises for purposes of inspection and
repair may constitute sufficient retention of control to
impose liability for injuries caused by a dangerous con-
dition, but only where the condition violates a specific
statutory provision and there is a significant structural or
Page 131
design defect." There is no way that Cozzoli could be li-
able for negligent security at the premises. Cozzoli was
not under any statutory duty to provide security. See
Scott v Bergstol, 11 AD3d 525, 782 N.Y.S.2d 793 (2d
Dept 2004); Couluris v Harbor Boat Realty, Inc., 31
AD3d 686, 820 N.Y.S.2d 282 (2d Dept 2006); Ever Win,
Inc. v 1-10 Industry Assoc., LLC, 33 AD3d 845, 827
N.Y.S.2d 63 (2d Dept 2006); Lindquist v C & C Land-
scape Contractors, Inc., 38 AD3d 616, 831 N.Y.S.2d 523
(2d Dept 2007).
The fact pattern in Hepburn v Getty Petroleum
Corp., 258 A.D.2d 504, 684 N.Y.S.2d 624 (2d Dept
1999), is similar to the instant case. Plaintiff Hepburn
was the employee of Twenty Gas, Inc., which leased a
gas station from defendant Shekel Enterprises, Inc. Hep-
burn was injured during an armed robbery of the gas sta-
tion. The lease between Twenty Gas and Shekel provided
that Twenty Gas would make repairs and maintain the
station. Shekel, the out of possession landlord, retained
the right to enter the premises to inspect and make re-
pairs if Twenty Gas failed to do so. Supreme Court,
Kings County granted summary judgment to Shekel. In
affirming the Supreme Court, the Appellate Division,
Second Department, stated:
The Supreme Court properly granted
Shekel's motion for summary judgment
dismissing the complaint insofar as asser-
ted against it since it was an out-of-pos-
session landowner and was not obligated
under the lease to maintain the premises
(see, Stark v Port Auth., 224 A.D.2d 681,
682, 639 N.Y.S.2d 57) . . . Here there is no
evidence of a specific [*12] statutory vi-
olation or a structural or design defect.
There was also no evidence that Shekel
was involved in the daily operations of the
gas station.
See Carvano v Morgan, 270 A.D.2d 222, 703 N.Y.S.2d
534 (2d Dept 2000); Jackson v U.S. Tennis Ass'n., Inc.,
294 A.D.2d 470, 742 N.Y.S.2d 374 (2d Dept 2002);
Roveto v VHT Enters., Inc., 17 AD3d 341, 791 N.Y.S.2d
843 (2d Dept 2005); Yadegar v International Food Mar-
ket, 37 AD3d 595, 830 N.Y.S.2d 244 (2d Dept 2007);
Rhian v PABR Associates, LLC, 38 AD3d 637, 832
N.Y.S.2d 590 (2d Dept 2007).
Cozzoli established its prima facie entitlement to
summary judgment and dismissal of the complaint and
all cross-claims against it by demonstrating that it relin-
quished control of the leased premises to Telco, and that
no statutory violations existed. In opposition, plaintiffs
failed to demonstrate the existence of issues of material
 Page 132

fact with respect to Cozzoli as the out of possession
landlord bearing any responsibility for premises' security.
Conclusion
Accordingly, it is
ORDERED that defendant Telco Discount of Aven-
ue U, Inc.'s motion, for summary judgment, pursuant to
CPLR Rule 3212, dismissing the complaint and all cross-
claims against it, is denied; and it is further
ORDERED that defendant Cozzoli Brothers, LLC's
motion for summary judgment, pursuant to CPLR Rule
3212, dismissing the complaint and all cross-claims
against it is granted.
This constitutes the decision and order of the court.
ENTER
HON. ARTHUR M. SCHACK
J.S.C.

44 of 55 DOCUMENTS

[*1] Alexander Cohen, Plaintiffs, against Cablevision Systems Corporation, Cable-

vision Systems Westchester Corporation and 3432 Lex Corp., Defendants.

007294/05

SUPREME COURT OF NEW YORK, NASSAU COUNTY

2007 NY Slip Op 50791U; 15 Misc. 3d 1121A; 839 N.Y.S.2d 432; 2007 N.Y. Misc. LEX-
IS 2501; 237 N.Y.L.J. 90

April 10, 2007, Decided

NOTICE: THIS OPINION IS UNCORRECTED

AND WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.
CORE TERMS: ladder, tenant's, cable, summary judg-
ment, customer, common law, installation, exterior, over-
hang, hook, flat, utility pole, permission to use, cause of
action, constructive notice, cross-claims, supervised, al-
teration, installed, purported, installer, cross-motion,
junction, scaffold, foreseen, slipped, street, laying, awn-
ing, unsafe
HEADNOTES
[**1121A] [***432] Labor--Safe Place to Work.
COUNSEL: Stewart M. Dweck, Esq., Attorney for
Plaintiff, New York, NY.
William J. Fitzpatrick, Esq., Goldberg Segalla, LLP, At-
torneys for Defendant Cablevision, Smithtown, NY.
Marc H. Pillinger, Esq., Kuczinski Vila Trallo Pillinger
& Miller LLP, Attorneys for Defendant, Elmsford NY.
JUDGES: John M. Galasso, J.
OPINION BY: John M. Galasso
OPINION
John M. Galasso, J.
On November 5, 2004 while installing residential
cable service, plaintiff fell off a ladder from a height of
approximately 11 to 12 feet and was injured. According
to plaintiff, an employee of third-party defendant AM
Broadband LLC (Broadband), a subcontractor for CSC
Holdings, Inc., s/h/a Cablevision Systems Corporation
(Cablevision), he first evaluated the job and determined
that he would need to install a hook and run a line on the
utility pole across the street, drill a hole through the
second floor exterior of the building and then run the line
into the interior to a customer's apartment. Thereafter, he
planned to attach the utility pole line to the building's
junction box.
Using a ladder provided by his employer, he first at-
tached a "J" hook to the utility pole. Leaving that ladder
behind, he then crossed back to the building and asked
the customer if he could use a second ladder which
happened to be laying flat on an overhang at the rear of

the building.
There was a four-foot deep awning attached to the side of
the building over the first floor and plaintiff set up the
second ladder at an angle to accommodate it. After
climbing about four or five rungs from the top of the lad-
der, it "slipped out" and plaintiff fell.
Plaintiff explains the reason he used two ladders was to
minimize the time that he would have to stop traffic with
safety cones in order to hook up the cable line from
across the street to the newly installed exterior junction
box.
Section § 240(1) of the Labor Law imposes absolute liab-
ility upon owners, contractors or their agents for viola-
tions the statute. The comparative fault of a worker is not
at issue (Haimes v. New York Telephone Co., 46 N.Y.2d
132, 385 N.E.2d 601, 412 N.Y.S.2d 863).
Plaintiff's expert safety engineer opines that plaintiff was
not provided with proper protection because the job re-
quired two workers and a personal lift or scaffold. There-
fore Broadband was in violation of Industrial Code sec-
tions 23-1.21(b)(4)(ii), (iv) and (v) (see Brown v. Con-
cord Nurseries, 37 AD3d 1076, 829 N.Y.S.2d 782).
Turning first to defendant 3432 Lex Corp., the owner of
the building and its summary judgment motion to dis-
miss the entire complaint, its principal, John Boggi, testi-
fied that the corporation owned an aluminum ladder with
swivel metal feet with a rubber base. It was kept on a flat
roof in the rear of the building and the tenants were spe-
cifically told not to touch the ladder. He explained he did
not know the person listed on plaintiff's work order, the
purported customer, and did not have any knowledge
cable was being installed. Lex Corp.'s approval was not
obtained by the tenant and no one had permission to use
the ladder.
Lex's Corp.'s motion to dismiss plaintiff's labor Law §
240(1) cause of action is granted. As owner of the
premises it had no nexus to plaintiff's work. Plaintiff was
on the owner's property by virtue of Public Services Law
§ 211 which prohibits a landlord from interfering with
cable [*2] television installation. Because of the stat-
ute, this defendant cannot be charged with the duty of
providing the safe working conditions mandated under
Labor Law § 240(1) (Abbatiello v. Lancaster Studio As-
sociates, 3 N.Y.3d 46, 814 N.E.2d 784, 781 N.Y.S.2d
477).
The same logic must hold true for actions brought pursu-
ant to Labor Law § 241(6).
Page 133
With respect to plaintiff's claims of a violation of
Labor Law § 200 and ordinary negligence, there is no
evidence whatsoever that defendant or its agent directed,
controlled or supervised the work. Further there was no
contractual relationship between Lex Corp. and the other
defendants.
Plaintiff's negligence claim is based upon defendant hav-
ing actual or constructive notice of the alleged unsafe
condition, i.e., the defective ladder which was provided
to him by a purported tenant.
Plaintiff admits the ladder was laying flat on top of a
large overhang in the back of the building and when he
asked if he could use it the customer said "no problem."
However, it is uncontested that defendant Lex Corp.
warned the tenants not to place anything on the roof or
to use the ladder.
Even if defendant's ladder was defective or unsafe, the
inquiry regarding foreseeability must also be viewed
with the query of was plaintiff's injury was produced
solely by a self-operating, intermediary cause disconnec-
ted from defendant's action (see Milwaukee & S.P.R. Co.
v. Kellogg, 94 U.S. 469, 24 L. Ed. 256). If the intervening
act was one that could reasonably be foreseen by defend-
ant, defendant may still be subject to liability (e.g., Gor-
don v. Eastern Ry. Supply, 82 N.Y.2d 555, 626 N.E.2d
912, 606 N.Y.S.2d 127).
The Court determines as a matter of law under the facts
presented that defendant could not have foreseen his ten-
ant or someone on the tenant's behalf would give a
cable installer permission to use the ladder which he kept
above a one-story overhang and the installer would then
employ it in place of the ladder provided to him by his
employer to gain access to an exterior wall above the
four-foot deep awning.
Reasonable foresight, not prophetic vision, is the meas-
ure of responsibility (Cartee v. Saks Fifth Avenue, 277
A.D. 606, 609, 101 N.Y.S.2d 761).
Accordingly, defendant's motion is granted regarding
Labor Law § 200 and common law negligence and
plaintiff's complaint against 3432 Lex Corp. and all
cross-claims are dismissed.
Defendant Cablevision also opposes plaintiff's motion
for summary judgment under Labor Law § 240(1) and
cross-moves for summary judgment under Labor Law §
200, § 240(1), § 241(6) and common law negligence.
[*3] Cablevision's motion for summary judgment under
Labor Law § 200 and common law negligence is granted
 Page 134

and that cause of action and any cross-claims are dis-
missed.
There is no evidence Cablevision directed, supervised or
controlled the method or manner of plaintiff's work or
was otherwise negligent by having actual or constructive
notice of the alleged dangerous condition (Dupkanicova
v. Vasiloff, 35 AD3d 650, 829 NYS2d 133; Pilch v. Board
of Education of the City of New York, 27 AD3d 711, 815
N.Y.S.2d 617).
NYS2d 484; see Sztachanski v. Morse Diesel Internation-
al, 9 A.D.3d 457, 780 N.Y.S.2d 367; Urias v. Orange
County Agricultural Society, 7 AD3d 515, 776 N.Y.S.2d
92; see also Makaj v. Metropolitan Transportation Au-
thority, 18 AD3d 625, 796 NYS2d 621; e.g. Canino v.
Electronic Technologies Company, 28 AD3d 932, 813
N.Y.S.2d 557).
Both plaintiff's motion and Cablevision's cross-motion
on the § 240(1) claim are denied.

Turning to Cablevision's cross-motion pursuant to Labor
Law § 240(1), the Court first must determine if plaintiff's
work is of the kind covered under this section. The Court
concludes it is. 12 N.Y.C.R.R. § 23-1.4(b)(13) defines
construction work as including alteration work. Altering
requires a plaintiff to make a significant physical change
to the "configuration or composition" of the building and
does not encompass mere maintenance (e.g., Joblon v.
Solow, 91 N.Y.2d 457, 695 N.E.2d 237, 672 N.Y.S.2d 286
- the installation of a clock; Enge v. Ontario County Air-
port, 26 AD3d 896, 809 N.Y.S.2d 345 - telephone install-
ation; compare Abbatiello v. Lancaster Assoc., supra).
Regarding the § 241(6) claim, as determined above
plaintiff was involved in alteration work which is a
covered activity. The factual issue remains as to whether
the ladder provided to plaintiff by his employer was suit-
able to perform the work or some sort of scaffold was
needed in violation of the Industrial Code.
Whether the ladder slipped or the wind knocked him off
has little relevance to this motion but may be raised at
trial as evidence of plaintiff's inconsistent statements
(see Curte v. City of New York, 21 AD3d 1050, 801
N.Y.S.2d 154).

Issues of fact remain, however, as to whether plaintiff's The remainder of plaintiff's motion is denied.
choice to use another ladder was the sole proximate
Plaintiff and Cablevision are directed to appear at
cause of his injuries in light of Cablevision's expert affi-
the DCM Pre-Trial Conference on MAY 8, 2007.
davit that the ladder supplied by Broadband was ad-
equate to safely perform the job (Blake v. Neighborhood [*4] Dated: April 10, 2007
Housing Services, 1 NY3d 280, 803 NE2d 757, 771

45 of 55 DOCUMENTS

Positive
As of: Sep 10, 2008

[*1] Devon Neil, Plaintiff, against New York City Housing Authority and THE
CITY OF NEW YORK, Defendants.

36847/04

SUPREME COURT OF NEW YORK, KINGS COUNTY

2007 NY Slip Op 50698U; 15 Misc. 3d 1115A; 839 N.Y.S.2d 434; 2007 N.Y. Misc. LEX-
IS 1763; 237 N.Y.L.J. 72

April 4, 2007, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED

OFFICIAL REPORTS.
SUBSEQUENT HISTORY: Affirmed by, in part Neil v.
New York City Hous. Auth., 2008 N.Y. App. Div. LEXIS
1702 (N.Y. App. Div. 2d Dep't, Feb. 26, 2008)
CORE TERMS: tenant, assailant, summary judgment,
landlord, criminal activity, assault, vestibule, notice,
cause of action, persistent, drug activities, common-law,
security measures, deposition testimony, deposition,
causal, criminal acts, causal relationship, time limit, as-
saulted, entrance, shooting, untimely, triable, selling,
failure to act, tortious acts, unlawful use, proprietary ca-
pacity, failure to state
HEADNOTES
[**1115A] [***434] Negligence--Maintenance of
Premises--Criminal Acts of Third Parties. Real Property
Law--§ 231 (2) (Liability of landlord where premises are
occupied for unlawful purpose). Civil Practice Law and
Rules--§ 3211 (c) (Motion to dismiss; motion treated as
one for summary judgment).
COUNSEL: Plaintiff was represented by Robert C. Fon-
tanelli, Esq. of Rayo & Fontanelli, P.C.
Defendant NYCHA was represented by Natasha L.
Nordahl, Esq. of Lester Schwab Katz & Dwyer, LLP.
The City was represented by Joseph Salvo, Esq. of the
Corporation Counsel of the City of New York.
JUDGES: Jack M. Battaglia, Justice.
OPINION BY: Jack M. Battaglia
OPINION
Jack M. Battaglia, J.
On May 20, 2004, Plaintiff, who was visiting his
mother at 303 Vernon Avenue, allegedly sustained per-
sonal injuries when he was assaulted by an unidentified
tenant in the public vestibule of the building. Plaintiff
commenced the instant action against NYCHA and the
City of New York on theories of negligent premises se-
curity and violation of Real Property Law § 231(2).
NYCHA's Motion for Summary Judgment
NYCHA contends that it is entitled to summary
judgment dismissing Plaintiff's claim of negligent
premises security because Plaintiff's assailant was a ten-
ant at 303 Vernon Avenue and the attack occurred in the
public vestibule area. In support of its motion, NYCHA
submits, among other things, Plaintiff's Bill of Particulars
Page 135
in which Plaintiff alleges that his assailant was a tenant
of the building. NYCHA also proffers the transcripts of
Plaintiff's testimony at a hearing pursuant to General
Municipal Law § 50-h and at his examination before tri-
al, to the effect that Plaintiff's assailant was a tenant and
that the attack occurred in the vestibule of the building,
which was open to the public.
[*2] "It is well established that a landlord's duty to
maintain his property in a safe condition includes the tak-
ing of minimal precautions to protect against the reason-
ably foreseeable criminal acts of third persons." (Maria
S. v Willow Enterprises, Inc., 234 A.D.2d 177, 178, 651
N.Y.S.2d 486 [1st Dept. 1996].) This duty of care applies
to government entities acting in their proprietary capacity
as landlords. (See Venetal v City of New York, 21 AD3d
1087, 1088, 803 N.Y.S.2d 609 [2d Dept 2005].) The duty
extends not only to the tenants of the premises, but also
to their guests. (See Novikova v Greenbriar Owners
Corp., 258 A.D.2d 149, 151, 694 N.Y.S.2d 445 [2d Dept
1999].)
"In premises security cases particularly, the neces-
sary causal link between a landlord's culpable failure to
provide adequate security and a tenant's injuries resulting
from a criminal attack in the building can be established
only if the assailant gained access to the premises
through a negligently maintained entrance." (Burgos v
Aqueduct Realty Corp., 92 N.Y.2d 544, 550, 706 N.E.2d
1163, 684 N.Y.S.2d 139 [1998].) As such, Plaintiff may
recover only if the assailant was an intruder. (See id.;
Provenzano v Roslyn Gardens Tenants Corp., 190 AD2d
718, 719, 593 N.Y.S.2d 80 [2d Dept 1993] [summary
judgment granted where assailant was a house guest of a
resident]; Carmen P. v PS&S Realty Corp., 259 A.D.2d
386, 388, 687 N.Y.S.2d 96 [1st Dept 1999] [in a negli-
gent security claim, Plaintiff must "present evidence
from which intruder status may reasonably be inferred"];
see also Venetal v City of New York, 21 AD3d 1087 at
1089-90, 803 N.Y.S.2d 609.)
Moreover, it has been held that a landlord has no
duty to an injured plaintiff where the crime at issue oc-
curs in an outdoor common area, or an area that is neces-
sarily accessible to the public, such as an entrance vesti-
bule. ( See Novikova v Greenbriar Owners Corp., 258
A.D.2d at 155; Concepcion v NYCHA, 207 A.D.2d 857,
857, 616 N.Y.S.2d 986 [2d Dept 1994].)
NYCHA, therefore, has established prima facie its
entitlement to judgment as a matter of law on Plaintiff's
negligent premises security claim. In opposition, Plaintiff
does not dispute that his assailant was a tenant of the
building or that the alleged criminal act occurred in a
public entrance vestibule. Accordingly, that branch of
NYCHA's motion seeking dismissal of Plaintiff's claim
insofar as it alleges negligent premises security must be

granted.
NYCHA also contends that it is entitled to summary
judgment dismissing Plaintiff's claim under Real Prop-
erty Law § 231(2), which "imposes joint and several liab-
ility on a property owner who knowingly leases or gives
possession of property to a tenant to use the premises un-
lawfully, or permits such unlawful use." (See Maria S. v
Willow Enterprises Inc., 234 A.D.2d at 178.) "A cause of
action is stated if plaintiff alleges that the landlord was
given notice of persistent criminal activity on the
premises creating the likelihood of injury to others and
further demonstrates a causal relationship between the
complained-of-activities and plaintiff's injuries." (Luisa
R. v City of New York, 253 A.D.2d 196, 202, 686
N.Y.S.2d 49 [1st Dept 1999].) The statute is not limited
"to mandating the removal only of identified tenants or
other identified occupants." (Id. [emphasis in original].)
In support of its motion, NYCHA proffers the affi-
davit of its current employee Winnifred Quinton and the
deposition testimony transcript of its former employee
Pradip Singh. As will be demonstrated, Mr. Quinton's af-
fidavit lacks foundational support and is without any pro-
bative [*3] value. Mr. Singh's testimony does not help
NYCHA, in that it demonstrates that NYCHA had re-
ceived complaints of criminal activity on the premises
and did nothing to stop it.
In his affidavit, Mr. Quinton avers that he is cur-
rently the Development Manager of the NYCHA Sumner
Houses Development, which includes the subject build-
ing at 303 Vernon Avenue. Mr. Quinton avers that it is
NYCHA's business practice to enter all maintenance and
repair issues into a computerized work ticket system, and
that no entries exist regarding the vestibule area of the
subject building. Mr. Quinton also avers that he searched
for records of assaults in the front vestibule area of the
subject building between the dates of May 20, 2003 and
May 20, 2004, and that there was no record of an assault
in the vestibule during that period.
Although Mr. Quinton is currently the Development
Manager, he does not make any statement regarding his
familiarity with NYCHA's record-keeping practices dur-
ing the relevant time period in 2003 and 2004. Mr. Quin-
ton's affidavit does not state whether NYCHA ever kept
records of assaults in the normal and regular course of
business during the relevant time period, nor any other
facts that would allow an inference that the absence of a
record of an assault would indicate the absence of a re-
port of an assault. Since Mr. Quinton's affidavit lacks any
foundational support, it is without any probative value.
(Cf. Carrion v McNally & McNally, 18 AD3d 212, 212,
794 N.Y.S.2d 339 [1st Dept 2005].)
NYCHA also submits the deposition testimony tran-
Page 136
script of its former employee Pradip Singh, who was a
Housing Assistant for the subject building from Septem-
ber 8, 2003 through December 9, 2004. As part of his du-
ties, he would handle tenant complaints, and go to court
for nonpayment or any type of evictions. Mr. Singh testi-
fied that, whenever he received a tenant complaint, he
would make a notation in the tenant's folder, and would
mention such complaint to management. Also as part of
his duties, he would conduct inspections of the exterior
of the premises.
When asked whether he had knowledge of any kind
of history of violent crime in front of the building, Mr.
Singh testified that he believed that there had been a
shooting incident in 2004. He testified that he learned
about the shooting incident when a tenant complained
about it. He then noted the complaint in an interview re-
cord. He testified that in response to the complaint, man-
agement did "nothing, because they are non-tenants." Mr.
Singh also testified that Plaintiff's mother, Ms. Belnavis,
spoke with him prior to the subject assault regarding her
request to transfer to another building.
Mr. Singh testified further that, prior to Plaintiff's as-
sault on May 20, 2004, he observed groups of tenants
hanging outside the building, although he never wit-
nessed people selling any drugs. Significantly, Mr. Singh
admitted that tenants called him to complain that people
were selling drugs in the building. Between January and
the date of the incident, Mr. Singh estimated that he re-
ceived less than 10 such complaints regarding drug activ-
ities. He told the tenants who complained that they
should call the police and file a report. Mr. Singh testi-
fied that he had no personal awareness regarding any
threats made towards Plaintiff in 2003 or 2004.
[*4] In Beatty v NAACP (194 A.D.2d 361, 364, 599
N.Y.S.2d 13 [1st Dept. 1993]) and Simmons v City of
New York (168 A.D.2d 230, 230, 562 N.Y.S.2d 119 [1st
Dept 1990]), the First Department held that, where it is
alleged that a landlord was repeatedly given notice that
there was criminal activity on the premises and took no
action to stop it, it is a question for the jury whether the
landlord's failure to act may serve as a predicate for liab-
ility for the tortious acts connected with the illegal activ-
ity. TheSimmons case does not make any distinction in
the application of said principle to a common-law claim
for failure to maintain minimal security precautions and
a statutory claim under Real Property Law § 231(2).
The Court is aware that Simmons cites Muniz v Flo-
hern (155 A.D.2d 172, 553 N.Y.S.2d 313 [1st Dept.
1990]), which was reversed by the Court of Appeals.
(See Muniz v Flohern, 77 N.Y.2d 869, 570 N.E.2d 1074,
568 N.Y.S.2d 725 [1991].) In Muniz, the infant plaintiff
was injured by bullet pellets while passing a store during
an attempted robbery of the store. (See id., at 870.)

Plaintiffs alleged that the store owner was aware that the
store tenant was engaging in illicit drug activities, and
that the owner failed to make an attempt to stop it. The
Court of Appeals held, among other things, that the in-
fant plaintiff's injuries did not result from the unlawful
use of the premises, namely the drug activities. (See id.)
The Court of Appeals noted that there was no relation-
ship between the robbery and the illicit drug activity.
(See id.)
The Beatty case, which was decided after the Court
of Appeals's decision in Muniz, implicitly recognizes that
Muniz did not disturb the principle that, where it is al-
leged that a landlord was repeatedly given notice that
there was criminal activity on the premises and took no
action to stop it, it is a question for the jury whether the
landlord's failure to act may serve as a predicate for liab-
ility for the tortious acts connected with the illegal activ-
ity. (See Beatty v NAACP, 194 A.D.2d at 364.)
Regardless, NYCHA failed to establish that
Plaintiff's injuries were not related to the complained-of
unlawful activities, including the shooting outside the
premises, Ms. Belnavis's complaints in relation to her re-
quest to be transferred, and the complaints regarding
drug activity on the premises. Mr. Singh's testimony
failed to show that NYCHA did not have notice of per-
sistent criminal activity on the premises, and failed to
show that such criminal activity did not create the likeli-
hood of injury to others. NYCHA, therefore, has failed to
demonstrate prima facie entitlement to summary judg-
ment dismissing that branch of Plaintiff's complaint al-
leging a violation of Real Property Law § 231(2).
In any event, in opposition to NYCHA's motion,
Plaintiff's evidence was sufficient to raise a triable issue,
and defeat summary judgment. Plaintiff submits the de-
position transcript and affidavit of Plaintiff's mother,
Marlene Belnavis, who was a tenant in the subject build-
ing. Ms. Belnavis avers that she first complained to
NYCHA about criminal activities within the premises on
January 13, 2003, when she requested to be transferred
out of the building. Ms. Belnavis attaches a copy of a
written complaint to her affidavit. According to Ms. Bel-
navis's written complaint to NYCHA, Plaintiff, who was
living with her on the premises, had been threatened by a
group of young men outside the premises after he had
asked that they "lower the noise" outside their apartment.
The group of men told Plaintiff that "you and your moth-
er is [*5] going to be clapped, which in street talk
means gun down [sic]."
Ms. Belnavis's written complaint to NYCHA also
states that on January 6, 2003 Plaintiff was approached
by one of the men and was punched and threatened
again. In her affidavit, Ms. Belnavis avers that she wit-
nessed the same young men selling drugs and gambling
Page 137
in the vestibule, lobby, hallways, and stairwells of the
building up until the time of the subject assault of the
Plaintiff on May 20, 2004. In her deposition testimony
and in her affidavit, Ms. Belnavis states that she made
numerous verbal complaints to Ms. Ahazie, who worked
in the NYCHA management office, regarding the alleged
persistent criminal activity occurring on the premises.
Plaintiff has sufficiently demonstrated the existence
of a triable issue as to whether NYCHA was given notice
of persistent criminal activity on the premises. Ms. Bel-
navis's testimony and affidavit, along with Plaintiff's 50-
h and deposition testimony concerning the threats and
subsequent assault, sufficiently create an issue of fact as
to whether Plaintiff's assault was in retaliation for com-
plaining to the assailants, the police, and NYCHA about
the criminal conduct on the premises. As such, Plaintiff
has sufficiently demonstrated that there exists at least a
triable issue of fact as to whether Plaintiff's assault was a
result of the ongoing criminal activity on the premises.
It should be noted that some of the contentions made
by NYCHA blur the distinction between a common-law
negligent premises security claim and a claim under Real
Property Law § 231(2). For example, NYCHA contends
that it is entitled to summary judgment under Real Prop-
erty Law § 231(2) since Plaintiff's injuries arose from a
"targeted" attack. In this regard, NYCHA cites Flores v
Dearborne Management (24 AD3d 101, 806 N.Y.S.2d
478 [1st Dept 2005]), Harris v NYCHA (211 A.D.2d 616,
621 N.Y.S.2d 105 [2d Dept 1995]), Tarter v Schildkraut
(151 A.D.2d 414, 542 N.Y.S.2d 626 [1st Dept 1989]),
Iannelli v Powers (114 A.D.2d 157, 498 N.Y.S.2d 377 [2d
Dept 1986]), and Snipe v Hennie (11 Misc 3d 1075[A],
816 N.Y.S.2d 701 [Civ Ct Kings County 2006]).
However, none of these cases involve a claim under Real
Property Law § 231(2), but rather only involve common-
law claims for negligent premises security.
In all of the cases relied upon by NYCHA, it was
held that the assailant's intentional conduct was the sole
proximate cause of the plaintiff's injuries. The assailant's
intentional conduct severed the causal nexus between the
alleged failure to take minimum security measures and
the plaintiff's injuries. The defendants were relieved of li-
ability because they could not have reasonably foreseen
the assailant's intentional unlawful conduct, so as to give
rise to a corresponding duty on their part to adopt secur-
ity measures. (See Iannelli v Powers, 114 A.D.2d at 162).
In the instant case, the Court need not address
whether the assailant's alleged conduct would have
severed the causal nexus between NYCHA's alleged fail-
ure to take minimum security measures and Plaintiff's
injuries. NYCHA has already been granted summary
judgment dismissing the common-law negligence claim
based on the undisputed facts that the assailant was a ten-

ant in the building and that the subject attack occurred in
a public vestibule.
In actions asserting liability under Real Property
Law § 231(2), the fact that an assailant [*6] may have
planned, targeted, or designed an attack against a
plaintiff does not relieve the defendant landlord of liabil-
ity. Plaintiff need only demonstrate that the landlord was
given notice of persistent criminal activity on the
premises creating the likelihood of injury to others, and
further demonstrate a causal relationship between the
complained-of-activities and Plaintiff's injuries. (See Lu-
isa R. v City of New York, 253 A.D.2d at 202.)
Under the statute, if a landlord is aware that an as-
sailant assaulted a plaintiff on a prior occasion, such
awareness may be evidence that the landlord was given
notice of persistent criminal activity. For example, in the
instant case, Plaintiff's and Ms. Belnavis's testimony that
Plaintiff had been assaulted and threatened by the assail-
ant in 2003, and that Ms. Belnavis complained to
NYCHA about the assailant and others, may be some
evidence that NYCHA was given notice of persistent
criminal activity on the premises for purposes of Real
Property Law § 231(2). The 2003 attack may be evid-
ence of the likelihood of injury to Plaintiff and others
after the 2003 attack, and may demonstrate the necessary
causal relationship. The fact that the conduct on both oc-
casions was intentional arguably provides weightier evid-
ence of a likelihood of injury and causal connection than
had the conduct been unintentional.
Accordingly, that branch of NYCHA's motion for
summary judgment seeking dismissal of Plaintiff's Com-
plaint insofar as it alleges a violation of Real Property
Law § 231(2) is denied.
The City's Cross-Motion for Dismissal under CPLR
3211(a)(7), CPLR 3211(c), and CPLR 3212
Plaintiff filed the Note of Issue on July 12, 2006.
Non-party Marlene Belnavis appeared for a deposition
on September 7, 2006. The City filed the instant motion
on January 24, 2007.
"[A] party moving for summary judgment outside
the statutory (CPLR 3212[a]) or court-imposed time lim-
it must show good cause for the delay." (Pena v Women's
Outreach Network, Inc., 35 AD3d 104, 108, 824 N.Y.S.2d
3 [1st Dept 2006]; see also Brill v City of New York, 2
NY3d 648, 652, 814 N.E.2d 431, 781 N.Y.S.2d 261
[2004].) Good cause may be shown by demonstrating
that there was significant outstanding discovery at the
time of the filing of the note of issue. (See Pena v Wo-
men's Outreach Network, Inc., 35 AD3d at 108; Herrera
v Felice Realty Corp., 22 AD3d 723, 724, 804 N.Y.S.2d
397 [2nd Dept 2005].)
Page 138
Here, the City fails to submit any reason for failing
to bring its summary judgment motion within 120 days
after the filing of the Note of Issue. The fact that Ms.
Belnavis's non-party deposition occurred after the filing
of the Note of Issue does not excuse the City for failing
to bring the summary judgment motion for more than
120 days after the completion of the deposition.
Accordingly, that branch of the City's motion for an
order, pursuant to CPLR 3212, is denied as untimely.
The City also moves for an order, pursuant to CPLR
3211(c) and CPLR 3211(a)(7), dismissing Plaintiff's
Complaint. Unlike CPLR 3212, a motion to dismiss pur-
suant to CPLR [*7] 3211 does not generally have a 120-
day deadline. (See, e.g., Santana v City of New York, 6
Misc 3d 642, 643, 787 N.Y.S.2d 651 [Civ Ct, New York
County 2004].)
This Court holds, however, that a motion to dismiss
made pursuant to CPLR 3211(c) is untimely if it is made
outside the statutory CPLR 3212(a) or court-imposed
time limit without a demonstration of good cause for the
delay. By its own terms, CPLR 3211(c) permits the court
to treat a CPLR 3211 motion as one for summary judg-
ment upon notice to the parties. To hold that a CPLR
3211(c) motion may be made beyond 120 days would de-
feat the purpose of CPLR 3212(a), and would undermine
the Court of Appeals's holding in Brill v City of New
York (2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261).
(See 166 Siegel's Practice Review 1, Can a Motion to
Dismiss Under CPLR 3211 Circumvent the Time Limit
of the Motion for Summary Judgment Under CPLR
3212? [Oct. 2005].) Accordingly, that branch of the
City's motion for dismissal pursuant to CPLR 3211(c) is
also denied as untimely.
The City's motion pursuant to CPLR 3211(a)(7) for
failure to state a cause of action is not subject to the 120-
day rule. (See Santana v City of New York, 6 Misc 3d at
643.) "On a motion to dismiss pursuant to CPLR
3211(a)(7) for failure to state a cause of action, the
pleading is to be liberally construed, accepting all the
facts as alleged in the pleading to be true, and according
the plaintiff the benefit of every possible inference." (See
Gallagher v Kucker & Bruh, 34 AD3d 419, 419, 824
N.Y.S.2d 145 [2d Dept 2006].) Plaintiff's pleadings, in-
cluding the Complaint and Bill of Particulars, allege,
among other things, that the City was negligent in its
ownership, operation, management, control, and main-
tenance of 303 Vernon Avenue. Essentially, Plaintiff al-
leges a negligent premises security cause of action and
cause of action for a violation of Real Property Law §
231(2) against the City.
In its motion, the City contends that Plaintiff failed
to plead the existence of a special relationship. (See, e.g.,
 Page 139

McPherson v NYCHA, 228 A.D.2d 654, 655, 646 true, and according Plaintiff the benefit of every possible
N.Y.S.2d 16 [2d Dept 1996].) "For liability to be imposed inference, Plaintiff sufficiently states valid causes of ac-
upon a governmental defendant for the breach of a duty tion against the City for negligent premises security and
which is governmental in nature, such as providing po- under Real Property Law § 231(2).
lice protection and adequate security, a plaintiff tenant
Accordingly, that branch of the City's motion for an
must show that the defendant breached a special duty to
order, pursuant to CPLR 3211(a)(7), dismissing
him or her." (Id.)
Plaintiff's Complaint, is denied.
Plaintiff's pleadings do not plead a breach of a duty
[*8] In sum, defendant NYCHA's motion for sum-
which is governmental in nature. Rather, Plaintiff's
mary judgment is granted to the extent that Plaintiff's
pleadings appear to allege that the City was acting in a
common-law negligence claim, alleging that NYCHA
non-governmental capacity with respect to the subject
failed to provide minimum security measures, is dis-
premises. Where the City acts "in a proprietary capacity
missed, and is denied with respect to Plaintiff's statutory
as a landlord, it is subject to the same principles of tort
cause of action under Real Property Law § 231(2). The
law as is a private landlord." (See Miller v State, 62
City's motion, pursuant to CPLR 3211 and CPLR 3212, is
N.Y.2d 506, 511, 467 N.E.2d 493, 478 N.Y.S.2d 829
denied in its entirety.
[1984]; see also Price v NYCHA, 92 N.Y.2d 553, 557,
706 N.E.2d 1167, 684 N.Y.S.2d 143 [1998].) The City April 4, 2007
makes no showing that it has no "proprietary" relation-
Jack M. Battaglia
ship to the premises a showing that would, in any event,
be more appropriate on summary judgment. As such, ac- Justice, Supreme Court
cepting all the facts alleged in Plaintiff's pleadings as

46 of 55 DOCUMENTS

[*1] Kevin C. Dolan, et ano.,, Plaintiffs, against 42 Lee Avenue Corp., Defendant.

11438/04

SUPREME COURT OF NEW YORK, KINGS COUNTY

2007 NY Slip Op 50320U; 14 Misc. 3d 1236A; 836 N.Y.S.2d 498; 2007 N.Y. Misc. LEX-
IS 490

February 5, 2007, Decided

NOTICE: [***1] THIS OPINION IS UNCORREC-
TED AND WILL NOT BE PUBLISHED IN THE PRIN-
TED OFFICIAL REPORTS.
CORE TERMS: floor, summary judgment, smoke de-
tector, door, kitchen, ceiling, self-closing, firefighter',
light fixture, apartment, interior, hallway, questions of
fact, issues of fact, tenants', cords, outlet, spread, du-
plex's, matter of law, statutory violations, indirectly, or-
dinance, staircase, movant, stove, holes, fire marshal,
electrical, inspection
tion to certain injured or representatives of certain de-
ceased firefighters).
COUNSEL: The plaintiff was represented by: Sullivan,
Papain Block, McGrath & Cannavo, P.C., New York,
NY.
The defendant was represented by: Rebore, Thorpe, Pis-
arello, P.C., Farmingdale, NY.
JUDGES: Mark I. Partnow, J.

HEADNOTES OPINION BY: Mark I. Partnow

[**1236A] Negligence--Injuries to Firefighters.
OPINION
General Municipal Law--§ 205-a (Additional right of ac-

Mark I. Partnow, J.
Upon the foregoing papers in this personal injury ac-
tion, defendant 42 Lee Avenue Corp. moves for an order,
pursuant to CPLR 3212, granting summary judgment dis-
missing the complaint of plaintiffs Kevin C. Dolan and
Eileen Dolan. 1 23
1 Plaintiff Eileen Dolan is suing derivatively for
the loss of society and companionship of her hus-
band, Kevin C. Dolan. The term "plaintiff" when
used in the singular herein refers to plaintiff Kev-
in C. Dolan.
On December 29, 2001, plaintiff, a fire marshal, was
injured during the course of [***2] his employment
while investigating a fire on the third floor of a four-story
brick building at 42 Lee Avenue in Brooklyn (hereinafter,
"the premises"). The building, which was owned, man-
aged and maintained by defendant, contained a store on
the first level and apartments on the second and third
levels. The third-floor extended to the fourth floor.
According to his deposition testimony, plaintiff ar-
rived at the third floor apartment, along with fellow fire
marshal, John Deprizio, after the fire had been extin-
guished, and proceeded to assess the amount and location
of fire damage in the kitchen. Plaintiff testified that, as he
stepped on a refrigerator that was lying on its side, the
plaster ceiling came down, striking him in the head and
shoulders, knocking him onto the ground and causing in-
juries to his left shoulder, head and back.
Mr. DePrizio subsequently prepared the Bureau of
Fire Investigation Report (the report) and an interview
sheet. According to the report, the fire originated in the
rear of the kitchen in the immediate vicinity of a fluores-
cent light fixture. He noted that "several extension cords
[were] found plugged into one another running from out-
let, over door way, [***3] over window, behind stove,
under cabinet and wiring of what appeared to be [the]
light fixture in question." The report indicated that the
cause of the fire was "not fully [*2] ascertained" and
"probably heat from electrical equipment." In addition,
the interview sheet contained statements made by tenants
Esther and Sara Weitzner, who stated that they witnessed
a fire in the light fixture under the kitchen cabinets.
Neither Esther nor Sara Weitzner reported hearing a
smoke detector alarm.
On May 24, 2004, plaintiffs commenced this action
against defendant, alleging statutory negligence pursuant
to General Municipal Law § 205-a and common-law
negligence. Plaintiffs claim that defendant was negligent
in its maintenance and control of the premises by, inter
alia, failing to equip the premises with working smoke
detectors, violating the certificate of occupancy, failing
Page 140
to have adequate fire-stopping in the premises, failing to
equip the doors with self-closing devices, and failing to
inspect the tenancies for safety and fire hazards.
Plaintiffs allege that defendant violated various rules,
regulations, ordinances and codes, including New York
City Administrative Code §§ 27-127, [***4] 27-128,
27-371, 27-979, 27-2044 and 27-2045; and New York
State Executive Law §§ 1193.2 and 1193.3.
In support of its summary judgment motion, defend-
ant refers to the testimony of Isacher Ostreicher, its sec-
retary. Mr. Ostreicher testified that, prior to defendant's
purchase of the premises, defendant hired an engineer to
conduct an inspection. According to Mr. Ostreicher, the
engineer reported that there was a smoke detector on
every floor of the premises and two smoke detectors in
the building stairwells. Mr. Ostreicher also testified that
the door to the third floor was self-closing and he never
received any complaints about, or made repairs to, the
smoke detector, the ceiling or the electrical outlets in the
kitchen. Mr. Ostreicher further testified that he did not
recall seeing any extension cords or power strips in the
kitchen during the inspection.
In moving for summary judgment, defendant argues
that plaintiff's injuries were not the proximate result of
any statutory or code violation attributable to defendant.
Defendant asserts that [***5] it did not receive any
complaints concerning the smoke detector, the ceiling or
electrical outlets in the kitchen, and had not made any re-
pairs to them prior to the fire. In addition, defendant
maintains that it did not have notice of the tenants' use of
extension cords near the light fixture. Lastly, defendant
asserts that, at the time of the accident, the ceiling's
structural integrity was significantly compromised due to
the fire and to the numerous holes that the fire marshals
were required to make in the plaster ceiling.
In opposition to the motion, plaintiffs contend that
defendant did not have operable smoke detectors, which
omission caused a delay in the response of the Fire De-
partment and the department's control of the fire.
Plaintiffs also argue that defendant did not have self-
closing doors on the third floor, which caused the fire to
intensify and spread more quickly from the third to the
fourth floor. As a result of such violations, plaintiffs al-
lege that the rapidly spreading fire required excessive
amounts of water, and firefighters had to poke numerous
holes in the ceilings and walls to locate pockets of fire,
which resulted in the compromise of the structural stabil-
ity [***6] of the kitchen ceiling. Plaintiffs submit the
affidavits of Michael F. Cronin, an expert in the field of
firefighting and safety, and of Eugene West, an expert in
the field of fire safety, fire investigation and building
code compliance, who both [*3] opine that defendant's
violations compromised the structural integrity of the

ceiling, thereby causing plaintiff's injuries. Mr. Cronin
avers that a smoke detector and self-closing door on the
third floor would have significantly limited the size and
damage of the fire and fire wardens would not have been
required to poke holes into the ceiling to find possible
pockets of fire. Mr. Cronin also notes that the tenants'
use of numerous electric cords in place of permanent
wiring violated Executive Law 9 NYCRR § 1163. Mr.
West states that the third floor public hallway did not
have a self-closing door as required under statute and, as
a result, the hallway acted as a chimney or internal flue
for the fire and caused its immediate extension to the
fourth floor. Lastly, Mr. West states that the premises was
configured as a three-family multiple dwelling, even
though the third and fourth floors were occupied by
members of a single family [***7] as a "two-family du-
plex." Plaintiffs also assert that defendant was both
aware of, and negligently permitted, the tenants' use of
several extension cords plugged into one another in the
same outlet near the light fixture. They allege that de-
fendant knew that Esther and Sara Weitzner were Sab-
bath observers and would leave the kitchen light fixture
and stove on, unattended.
In response to the affidavits of Mr. Cronin and Mr.
West, defendant submits the affidavit of Edward J. Cu-
yar, an expert in the field of fire cause and origin, who
physically inspected the premises approximately one
week after the fire. Mr. Cuyar avers that the fire did not
extend into the public hallway via an open doorway on
the third floor of the apartment. Mr. Cuyar's inspection
disclosed that the public third - floor staircase, the public
hallway and front door of the apartment exhibited only
moderate smoke staining. He noted that charring in the
third floor interior hall which led to the fourth floor in-
dicated that the fire extended horizontally from the kit-
chen into the interior hallway and then vertically to the
fourth floor via an interior staircase. Accordingly, de-
fendant contends that the duplex apartment [***8] con-
tained interior stairs leading from the third floor to the
fourth floor and that the apartment was not, therefore, re-
quired to have a self-closing door. Lastly, Mr. Cuyar
states that the absence of a smoke detector after a fire
does not necessarily mean that a detector was not present
before the fire since it could have been knocked down,
melted or otherwise destroyed during the fire.
Summary judgment should only be granted where
there are no triable issues of fact (Sillman v Twentieth
Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d
387, 165 N.Y.S.2d 498 [1957]). In order to prevail on a
motion for summary judgment, the movant must present
a prima facie case demonstrating entitlement to judgment
as a matter of law (Prince v Di Benedetto, 189 A.D.2d
757, 759, 592 N.Y.S.2d 388 [1993]; Zarr v Riccio, 180
A.D.2d 734, 735, 580 N.Y.S.2d 73 [1992]). Once the
Page 141
movant has established its prima facie case, the party op-
posing a motion for summary judgment bears the burden
of "produc[ing] evidentiary proof in admissible form suf-
ficient to require a trial of material questions of fact . . .
mere conclusions, expressions of hope or unsubstantiated
allegations or assertions are insufficient" [***9] (Zuck-
erman v City of New York, 49 N.Y.2d 557, 562, 404
N.E.2d 718, 427 N.Y.S.2d 595 [1980]; see also Romano v
St. Vincent's Medical Center of Richmond, 178 A.D.2d
467, 470, 577 N.Y.S.2d 311 [1991]; Tessier v New York
City Health & Hospitals Corp., 177 A.D.2d 626, 576
N.Y.S.2d 331 [1991]). The evidence presented on sum-
mary judgment must be scrutinized in the light most fa-
vorable to [*4] the party opposing the motion (Gold-
stein v Monroe County, 77 A.D.2d 232, 236, 432
N.Y.S.2d 966 [1980]). Since summary judgment deprives
a party of his or her day in court (Henderson v City of
New York, 178 A.D.2d 129, 576 N.Y.S.2d 562 [1991]), it
is a drastic remedy that will only be awarded when there
is no triable issue of fact and the court can render a de-
cision as a matter of law (Barclay v Denckla, 182 A.D.2d
658, 582 N.Y.S.2d 252 [1992]).
Additionally, "[i]t is well established that negligence
cases do not generally lend themselves to resolution by
summary judgment, since that remedy is appropriate
only where the negligence or lack of negligence of de-
fendant is established as a matter of law" (Chahales v
Garber, 195 A.D.2d 585, 586, 600 N.Y.S.2d 739 [1993]).
Summary judgment is appropriate, however, even in neg-
ligence cases, where the movant satisfies his or her
[***10] initial burden of proof and the nonmovant's op-
position is "entirely conjectural and there is no genuine
issue [of fact] to be resolved" (Cassidy v Valenti, 211
A.D.2d 876, 877, 621 N.Y.S.2d 405 [1995]).
General Municipal Law § 205-a (1) provides a fire-
fighter with a right of action where the "negligence of
any person or persons in failing to comply with the re-
quirements of any of the statutes, ordinances, rules, or-
ders and requirements of the federal, state . . . or city
governments" "directly or indirectly" causes the fire-
fighter's injury or death during the discharge of his or her
duties. General Municipal Law § 205-a "creates a cause
of action for firefighters who suffer line-of-duty injuries
directly or indirectly caused by a defendant's violation of
relevant statutes and regulations" (Giuffrida v Citibank
Corp., 100 N.Y.2d 72, 75, 790 N.E.2d 772, 760 N.Y.S.2d
397 [2003]). To assert a valid General Municipal Law §
205-a claim, a plaintiff must [1] identify the statute or or-
dinance with which the defendant failed to comply, [2]
describe the manner in which the firefighter was injured,
and [3] set forth [***11] those facts from which it may
be inferred that the defendant's negligence directly or in-
directly caused the harm to the firefighter' " (id. at 79,
quoting Zanghi v Niagara Frontier Transp. Comn., 85

N.Y.2d 423, 441, 649 N.E.2d 1167, 626 N.Y.S.2d 23
[1995]). To make out a claim under § 205-a the plaintiff
is also required to establish a "reasonable connection
between the statutory or regulatory violation and the
claimed injury" (Giuffrida v Citibank Corp., 100 N.Y.2d
72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003] [intern-
al citations omitted]).
Here, plaintiff identified numerous alleged statutory
violations by defendants, including Administrative Code
§§ 27-127 and 27-128. Administrative Code § 27-127
provides:
"Maintenance requirements. All buildings and all
parts thereof shall be maintained in a safe condition. All
service equipment, means of egress, devices, and safe-
guards that are required in a building by the provision of
this code or other applicable laws or regulations that are
required in a building by the provisions of this code or
other laws or regulations, or that were required by law
when the [***12] building was erected, altered, or re-
paired, shall be maintained in good working order."
Administrative Code § 27-128 provides:
"Owner responsibility. The owner shall be responsible at
all times for the safe maintenance of the building and its
facilities."
[*5] Sections 27-127 and 27-128 may form the predic-
ate for a claim under General Municipal Law § 205-a
(see Giuffrida, 100 N.Y.2d at 80 n 4).
The court finds several questions of fact that pre-
clude summary judgment, including, but not limited to,
whether an operational smoke detector was installed,
and, if it wasn't, whether the absence of the device
caused the uncontrolled spread of the fire and caused
plaintiff's injuries. In light of the deposition testimony
and affidavit evidence proffered by the parties, it is un-
47 of 55 DOCUMENTS
Positive
As of: Sep 10, 2008
[*1] Paul M. Downey, et ano., Plaintiff, against The Beatrice Epstein Family Part-
nership, L.P., et ano., Defendants.
7962/04
SUPREME COURT OF NEW YORK, KINGS COUNTY
Page 142
clear from the record whether a smoke detector was in-
stalled or working and summary judgment is therefore
inappropriate (see Baker v Riverhouse Realty Co., Inc.,
300 A.D.2d 214, 751 N.Y.S.2d 361 [2005]; Fasolino v
Sear Co., 179 A.D.2d 738, 578 N.Y.S.2d 644 [1992]).
Moreover, there is also a question of fact regarding
whether there [***13] was a requisite self-closing door
on the third floor to a public hallway and, if there wasn't,
whether the lack of the device contributed to the extent
and intensity of the fire and caused plaintiff's injuries.
While Mr. DePrizio's affidavit indicates that the fire
spread to the fourth floor through the open door, Mr. Cu-
yar's affidavit indicates that the third and fourth floors
operated together as a duplex apartment and that the fire
traveled along the duplex's interior staircase. Accord-
ingly, there is a question of fact as to whether the fire
spread up interior, as opposed to public, stairs, as well as
whether a self-closing door was required for the area.
Under the circumstances, the court finds an issue of fact
regarding whether there is a connection between the stat-
utory violations alleged and the injuries sustained by
plaintiff.
The court also denies defendant's summary judg-
ment motion with respect to the common law negligence
claim because questions of fact exist regarding whether
the defendant's statutory violations proximately caused
plaintiff's injuries. For example, plaintiff cites Mr. Os-
treicher's admission that defendant knew of the tenants'
"practice" of leaving the [***14] stove and light fixture
on and unattended, thus creating an issue of fact as to
whether defendant was aware of the dangerous condi-
tion. The court has considered defendant's remaining ar-
guments and finds them to be without merit.
For the foregoing reasons, the motion by defendants
is, in all respects, denied.
This constitutes the order and decision of the court.

2006 NY Slip Op 51560U; 12 Misc. 3d 1193A; 824 N.Y.S.2d 753; 2006 N.Y. Misc. LEX-
IS 2147
August 4, 2006, Decided
NOTICE: THIS OPINION IS UNCORRECTED
AND WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.
SUBSEQUENT HISTORY: Affirmed by Downey v.
Beatrice Epstein Family Partnership, L.P., 2008 N.Y.
App. Div. LEXIS 1569 (N.Y. App. Div. 2d Dep't, Feb. 19,
2008)
CORE TERMS: floor, detection, summary judgment,
smoke detectors, firefighter's, apartment, smoke, fire de-
partment, arrived, residential, conversion, speculative,
tenant, issues of fact, arrival, exact location, arriving,
minutes, hook, residential unit, indirectly, deposition, tri-
able, scene, matter of law, code violations, certificate of
occupancy, prima facie case, questions of fact, lv denied
HEADNOTES
[***753] [**1193A] Negligence--Injuries to Fire-
fighters.
JUDGES: Ira B. Harkavy, J.S.C.
OPINION BY: Ira B. Harkavy
OPINION
Ira B. Harkavy, J.
Upon the foregoing papers, defendants The Beatrice
Epstein Family Partnership, L.P (the Epstein Partnership)
and Alexander Tregubov, D.D.S. (Dr. Tregubov) move,
pursuant to CPLR 3212, for an order granting summary
judgment dismissing the complaint of plaintiffs Paul M.
Downey and Anika M. Downey 1 on the ground that
plaintiff's alleged injuries were not directly or indirectly
caused by statutory violations at the subject premises.
Plaintiffs oppose the instant motion on the ground that
triable issues of fact exist with respect to both the alleged
code violations and the causation of plaintiff's injuries
which preclude the grant of summary judgment to de-
fendants.
1 Plaintiff Anika Downey is suing derivatively
for the loss of society and companionship of her
husband, Paul M. Downey. The term "plaintiff"
when used in the singular herein, will always
refer to plaintiff Paul M. Downey.
Page 143
In the instant action, plaintiff, a firefighter for the
City of New York, seeks damages for injuries he al-
legedly sustained while engaged in firefighting duties at
115 Brightwater [*2] Court in Brooklyn (the Premises).
The Epstein Partnership owns the Premises and Dr.
Tregubov rents office space on the first floor. On
September 22, 2003, a fire occurred in Dr. Tregubov's of-
fice. Fire department records show that an alarm was
first received at 1:07 a.m. and a fire company arrived on
the scene at 1:11 a.m. Plaintiff was assigned to Ladder
Co. No. 61, the fire company which arrived first at the
Premises. A couple of minutes after plaintiff's company
arrived, a second company, Ladder Co. No. 169, also ar-
rived.
At his deposition, plaintiff testified that after he ar-
rived at the Premises, he did not see any smoke or other
signs of fire. Shortly thereafter, he was sent to an apart-
ment located on the second floor because a call had come
in to the fire department identifying that apartment as the
location of the fire. When plaintiff first arrived at the
apartment there was smoke present throughout the apart-
ment, but there were no visible open flames. Thereafter,
plaintiff was ordered to try to open up the back of a wall
of a closet located in the apartment so as to ascertain the
exact location of the fire. Plaintiff tried to use a hook to
open the wall but was not able to do so. He eventually
was able to open up a corner of the closet with the hook
and also pulled down a little of the ceiling. Thereafter,
unbeknownst to him, the hook became stuck on a beam
in the ceiling and when he attempted to pull the hook
back down he felt pain in his neck and shoulders.
Plaintiff testified that he was notified at some point dur-
ing his firefighting duties that the fire was located in an
office on the first floor below the second floor apartment
where plaintiff was injured.
Norma Rivera testified at her deposition on behalf of
the Epstein Partnership. She stated that on the date of the
fire, her husband, Paul Rivera, was the superintendent of
the Premises and that she assisted him with his duties.
She testified that those duties included checking the
smoke alarms in all of the apartments, including those
located in Dr. Tregubov's dental office. On the night of
the fire, a tenant from apartment 3F informed Mr. Rivera
of a possible smoke condition at the Premises. Ms.
Rivera went with her son to the second floor but did not
see a fire. She testified that her husband went to the up-
per floors to investigate. She further testified that within

five minutes of first being alerted to the presence of
smoke, Mr. Rivera discovered that the fire was located in
Dr. Tregubov's office. Ms. Rivera stated that her son then
called the fire department and firefighters arrived within
five minutes of the call.
In opposition to the instant motion, plaintiffs submit
the expert affidavit of Michael F. Cronin, a principal in a
consulting firm specializing in fire protection, life safety
and fire analysis, who has held a number of positions
within the New York City Fire Department. Mr. Cronin
states that upon his review of the certificate of occupancy
for the Premises and his own inspection of same, he con-
cluded that Dr. Tregubov's office had been illegally con-
verted from a residential unit to a commercial office
without any requisite plans or permits being filed. He
also states that such a conversion violates Multiple
Dwelling Law §§ 27-126, 27-147, 27-262, 27-215, 27-
217 and 300. Mr. Cronin also reviewed a fire incident re-
port generated with respect to the subject fire which
states that there were no smoke detectors present at the
location of the fire. He notes that such a lack of smoke
[*3] detection equipment violates Multiple Dwelling
Law § 27-979 which requires that all "dwelling units"
must be equipped with smoke detection devices.
With respect to the cause of plaintiff's injuries, Mr.
Cronin opines that such injuries occurred due to an al-
leged delay in determining where the fire was located.
Specifically, he states that if the fire initially had been
identified as being confined to Dr. Tregubov's office, as
was ultimately learned, plaintiff would not have been
present on the second floor and engaged in the fire detec-
tion activities which allegedly resulted in his injuries.
Mr. Cronin attributes this alleged delay to a lack of
smoke detectors in the office as well as to the office's il-
legal conversion from a residential unit to a dentist's of-
fice in violation of the certificate of occupancy for the
Premises which limits the Premises to a residential use.
He states that the fire marshal's report concerning the fire
demonstrates that the fire was "well-developed" by the
time it was discovered, thereby evidencing a delay in
timely detection of the actual location of the fire. Mr.
Cronin determined that if the office had remained a res-
idential unit with an entrance into the lobby of the
Premises as opposed to having a separate entrance as it
did after the conversion, and had contained adequate
smoke detection devices, the fire would have been identi-
fied as originating from that location from the outset,
either by the residential tenant of the unit itself or by
neighboring residential tenants, and plaintiff, as part of
the fire company responding first, would have been dir-
ected to fight the fire in Dr. Tregubov's office instead of
being ordered to engage in the fire detection activities on
the second floor of the Premises which allegedly resulted
in his injuries.
Page 144
In response to plaintiffs' expert's affidavit, Dr.
Tregubov submits the affidavit of Frank Valenti, a retired
New York City fire marshal. Mr. Valenti states that there
is no evidence that the fire was "well-developed" at the
time plaintiff arrived at the premises, given that when
plaintiff and his company first arrived at the Premises,
the actual location of the fire was not readily ascertain-
able by sight. He also states that although the incident re-
port cited to by Mr. Cronin noted that there were no
smoke detectors present in the office at the time of the
fire, such report did not necessarily take into account that
smoke detectors might have been knocked down, melted
or otherwise destroyed during the fire or related fire
fighting activities. Moreover he notes that Dr. Tregubov,
as a tenant, was not responsible for either the alleged il-
legal conversion of his office, which presumably took
place prior to his tenancy, or for supplying smoke detect-
ors for said office.
Mr. Valenti also opines that even if the alleged office
conversion did represent a code violation or a smoke de-
tector was not present in the office, it is entirely speculat-
ive to assume that the fire would have been detected
sooner and, in fact, there is no evidence that there was
any undue or unusual delay in detecting the actual loca-
tion of the fire given that said location was not readily
ascertainable by sight at the time of plaintiff's arrival at
the Premises. Mr. Valenti also opines that even if the ex-
act location of the fire had been reported earlier, it is
speculative to assume that plaintiff would not have been
assigned to fire detection duties on the second floor be-
cause the fire was not immediately visible upon his ar-
rival and it is common for there to be multiple calls re-
garding a single fire, often giving different locations
[*4] for the fire or not giving an exact location, which
necessitate an investigation as to the source of the fire.
Moreover, Mr. Valenti notes that although the first arriv-
ing fire company is generally dispatched to the actual
location of the fire, there are various situations, particu-
larly when the location of the fire is not easily ascertain-
able upon arrival and there are multiple calls involving
said fire, where the first arriving company initially might
be engaged in fire detection activities in a different area
of the affected premises.
Summary judgment should only be granted where
there are no triable issues of fact (Sillman v Twentieth
Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d
387, 165 N.Y.S.2d 498 [1957]). In order to prevail on a
motion for summary judgment, the movant must present
a prima facie case demonstrating entitlement to judgment
as a matter of law (Prince v Di Benedetto, 189 A.D.2d
757, 759, 592 N.Y.S.2d 388 [1993]; Zarr v Riccio, 180
A.D.2d 734, 735, 580 N.Y.S.2d 73 [1992]). Once the
movant has established its prima facie case, the party op-
posing a motion for summary judgment bears the burden

of "produc[ing] evidentiary proof in admissible form suf-
ficient to require a trial of material questions of fact . . .
mere conclusions, expressions of hope or unsubstantiated
allegations or assertions are insufficient" (Zuckerman v
City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718,
427 N.Y.S.2d 595 [1980]; see also Romano v St. Vin-
cent's Medical Center of Richmond, 178 A.D.2d 467,
470, 577 N.Y.S.2d 311 [1991]; Tessier v New York City
Health & Hospitals Corp., 177 A.D.2d 626, 576 N.Y.S.2d
331 [1991]). The evidence presented on summary judg-
ment must be scrutinized in the light most favorable to
the party opposing the motion (Goldstein v Monroe
County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]).
Since summary judgment deprives a party of his or her
day in court (Henderson v City of New York, 178 A.D.2d
129, 576 N.Y.S.2d 562 [1991]), it is a drastic remedy that
will only be awarded when there is no triable issue of
fact and the court can render a decision as a matter of
law (Barclay v Denckla, 182 A.D.2d 658, 582 N.Y.S.2d
252 [1992]).
Additionally, "it is well established that negligence
cases do not generally lend themselves to resolution by
summary judgment, since that remedy is appropriate
only where the negligence or lack of negligence of de-
fendant is established as a matter of law" (Chahales v
Garber, 195 A.D.2d 585, 586, 600 N.Y.S.2d 739 [1993]).
Summary judgment is appropriate, however, even in neg-
ligence cases, where the movant satisfies his or her initial
burden of proof and the nonmovant's opposition to the
motion for summary judgment is "entirely conjectural
and there is no genuine issue [of fact] to be resolved"
(Cassidy v Valenti, 211 A.D.2d 876, 877, 621 N.Y.S.2d
405 [1995]).
"To make out a valid claim under General Municip-
al Law § 205-a, a plaintiff must " identify the statute or
ordinance with which the defendant failed to comply, de-
scribe the manner in which the firefighter was injured,
and set forth those facts from which it may be inferred
that the defendant's negligence directly or indirectly
caused the harm to the firefighter'" (Zvinys v Richfield
Investment Co., 25 A.D.3d 358, 808 N.Y.S.2d 640 [2006]
lv denied 7 N.Y.3d 706, 853 N.E.2d 244, 2006 N.Y. LEX-
IS 1881, 819 N.Y.S.2d 873 [2006], quoting Zanghi v
Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 441,
649 N.E.2d 1167, 626 N.Y.S.2d 23 [1995]). "As a remedi-
al statute, [§ 205-a] is subject to liberal construction"
(Foiles v V.L.J. Construction Corp., 17 A.D.3d 297, 299,
794 N.Y.S.2d 27 [2005]). Accordingly, to make out a
claim under § 205-a, a plaintiff need not demonstrate the
same degree of proximate cause as is required in [*5] a
common-law negligence action; rather, "the substantial
case law that has developed on the subject holds that a
plaintiff need only establish a practical or reasonable
connection between the statutory or regulatory violation
Page 145
and the claimed injury" (Giuffrida v Citibank Corp., 100
N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397
[2003][internal quotation marks and citations omitted]).
However, although a practical and reasonable connection
is all that need be shown, the necessary causative ele-
ment will not be found where the connection between the
alleged injury and the statutory violation is deemed
either too speculative or attenuated to support § 205-a li-
ability (see e.g. Kenavan v City of New York, 267 A.D.2d
353, 356, 700 N.Y.S.2d 69 [1999], lv denied 95 N.Y.2d
756, 734 N.E.2d 760, 712 N.Y.S.2d 448 [2000][finding
that "the requisite causal connection between the alleged
violations of the statues and regulations relied on [was]
absent" where, although "the harm might not have oc-
curred" if the defendant municipality had not violated the
subject statue, said violation merely, in effect, placed the
decedent firefighter at the scene where he was struck by
a vehicle, an incident unrelated to the alleged violation];
Dillon v City of New York, 238 A.D.2d 302, 302, 656
N.Y.S.2d 51 [1997], lv denied 90 N.Y.2d 811, 688 N.E.2d
1382, 666 N.Y.S.2d 100 [1997][finding no practical con-
nection between sprinkler system failing to operate and
plaintiff's injury which occurred when the fire hose he
was using to extinguish the subject fire burst, throwing
him to the ground]).
Here, defendants have demonstrated their prima
facie entitlement to summary judgment and plaintiffs
have failed to raise a triable issue of fact with regard to
their claim that the alleged code violations either directly
or indirectly caused plaintiff's injury. Defendants have
established their prima facie case by submitting uncon-
tradicted deposition evidence that plaintiff was injured in
a second floor apartment while performing fire detection
activities and was not injured due to any structural condi-
tion present in the office or attributable to its alleged il-
legal conversion from a residential unit to an office (cf.
Foiles, 17 A.D.3d at 297 [question of fact precluding
summary judgment for defendant existed where it was
claimed that a defendant's failure to comply with condi-
tions precedent to obtaining a certificate of occupancy,
including alterations to allow for light and ventilation,
contributed to the poor visibility which allegedly caused
the firefighter's injuries]). Defendants also proffer the de-
position testimony of Ms. Rivera, who testified that she
identified the source of the smoke condition as Dr.
Tregubov's office within five minutes of being notified of
such condition and that her son called the fire department
thereafter informing them of same. Defendants also sub-
mit the expert affidavit of Mr. Valenti which states that it
is common for multiple individuals to call the fire depart-
ment without a clear idea of the location of the fire and,
accordingly, it is common practice for firefighters to per-
form fire detection functions to determine the location of
the fire, particularly when it is not clear upon arrival

from which location the fire is emanating. Moreover, Mr.
Valenti states that even if smoke detectors had been
present or the office had been a residential one, it is pure
speculation that the location of the fire would have been
determined sooner or called in more accurately or that
smoke detection activities on the second floor would
have been obviated.
In response to the defendants prima facie showing,
plaintiff has not demonstrated the existence of a question
of fact with regard to the causation of plaintiff's alleged
injuries. Mr. [*6] Cronin's affidavit relies on mere spec-
ulation with respect to his claim that the alleged lack of
smoke detectors and alleged illegal conversion of the of-
fice from residential to commercial caused plaintiff to be
present on the second floor where he was allegedly in-
jured. As noted by Mr. Valenti, it is entirely conjectural
to assume that if the unit in question were residential, the
residential tenant would have been present in the unit at
the time of the fire and the exact location of the fire
would have been detected sooner. Likewise, given that
there was no one present in the office at the time - a situ-
ation which, as previously noted, could well have oc-
curred even if the unit were residential - it is entirely
speculative to assume that the presence of smoke detect-
ors would have alerted tenants in other units of the exact
location of the fire more quickly, particularly given the
late hour at which the fire occurred. In addition, it is un-
disputed that plaintiff's fire company arrived approxim-
ately four minutes after the first alarm was received by
the fire department and that, upon his arrival at the scene,
plaintiff saw no signs of a fire, a fact which gives cre-
dence to Mr. Valenti's conclusion that the fire was not ne-
cessarily "well-developed" due to a delay in detection
prior to the arrival of the first-responding company.
There is, therefore, no evidence that the fire was not de-
tected close to its inception, as it was not apparent to the
arriving firefighters, including plaintiff, where the fire
was located. Moreover, although a call was apparently
received identifying the subject second floor apartment
as the source of the fire, Ms. Rivera testified that her son
also called the fire department and gave the correct loca-
tion of the fire. Since there is evidence that more than
one location was identified to the fire department as the
source of the fire, it is entirely speculative to assume that
no fire detection activities on the second floor would
have been conducted or would only have been conducted
by the later arriving company, particularly in light of the
fact that it appears that the correct location of the fire
was, in fact, relayed to the fire department but, nonethe-
less, the exact location of the fire could not be readily as-
certained by the first arriving company. Therefore, even
if someone had heard a smoke detector in the first floor
office or had called from that unit, it appears that the fire
department still would have received a call from the
Page 146
second floor apartment with regard to a smoke condition
that needed to be investigated. Moreover, Mr. Cronin's
claim that the office's separate entrance somehow also
delayed earlier detection of the fire is conclusory. Finally,
even if the code violations had placed plaintiff at the
scene of his injury - which, as previously noted, is en-
tirely speculative - it is undisputed that the injury itself
was actually caused when plaintiff's hook became caught
on a beam, an incident that, in and of itself, is not dir-
ectly or indirectly related to such alleged violations (see
Dillon, 238 A.D.2d at 302). Accordingly, given that it is
not claimed that any structural defect or dangerous con-
dition resulting from a statutory or regulatory violation
caused plaintiff's alleged injuries, which were sustained
in the course of ordinary fire detection activities, and
there is no evidence, other than speculation on the part of
plaintiffs' expert, that the alleged lack of fire detectors
and alleged illegal conversion of the office from residen-
tial to commercial delayed the identification of the cor-
rect source of the fire, thereby necessitating fire detection
activities to be conducted on the second floor which
would [*7] otherwise not have been conducted by
plaintiff, the court is constrained to grant the defendants'
motion for summary judgment with respect to plaintiffs'
§ 205-a claim.
Plaintiffs' claims based upon common law negli-
gence must also fail for much the same reason. 2 As an
initial matter, Dr. Tregubov, as a tenant, was not re-
sponsible for the alleged illegal conversion or the alleged
absence of smoke detectors in the office. Moreover, even
if the Epstein Partnership, as owner, had either actual or
constructive notice of the alleged violations, as previ-
ously discussed, the causal connection between such vi-
olations and plaintiff's injuries is wholly conclusory and
speculative and plaintiffs have failed to raise an issue of
fact with respect to the necessary element of proximate
cause (see Driscoll v Tower Assocs., 16 A.D.3d 311, 313,
793 N.Y.S.2d 11 [2005]["Plaintiff's failure to demonstrate
that the alleged violations proximately caused the acci-
dent meant that defendants could not be liable for com-
mon-law negligence"]). Accordingly, any claims asserted
by the plaintiffs which are based upon common law neg-
ligence principles must also fail.
2 Pursuant to General Obligations Law § 11-
106, a firefighter injured in the performance of
his or her duties whose injuries are proximately
caused by the neglect, willful omission, or inten-
tional, willful or culpable conduct of any person
or entity other than that of the firefighter's em-
ployer, may seek to recover damages from the
person or entity whose conduct resulted in the in-
juries.
As a result, the defendants' motions for summary
 Page 147

judgment are granted and the plaintiffs' complaint is dis- The foregoing constitutes the decision, order and
missed. judgment of the court.

48 of 55 DOCUMENTS

Analysis
As of: Sep 10, 2008

Carroll v. Nostra Realty Corp.

109293/2002

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2005 N.Y. Misc. LEXIS 3307; 233 N.Y.L.J. 65

April 6, 2005

SUBSEQUENT HISTORY: Later proceeding at Car-
roll v. Nostra Realty Corp., 2007 N.Y. Misc. LEXIS 981
(2007)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant landlord
moved pursuant to N.Y. CPLR 2221 for leave to renew
and reargue the prior motion to consolidate the action
with his summary non-payment proceeding against
plaintiff tenants in Civil Court, New York County. In ad-
dition, the landlord petitioned the court to order payment
of rent arrears and use and occupancy, pendente lite,
from the tenants.
OVERVIEW: The cases the landlord sought to consol-
idate arose from a dispute with the tenants over the liv-
ing conditions at a residential premises, which the land-
lord had leased, and continued to lease, to the tenants.
Since 2001, the tenants had only tendered four months
rent, allegedly in response to the ongoing existence of
numerous defects and hazardous conditions in the
premises. The landlord commenced the summary pro-
ceeding, and the tenants commenced the instant action
against the landlord, alleging that they sustained severe
and permanent mental and physical injury as a result of
the landlord's negligence regarding the presence of toxic
mold and asbestos in the premises (the tort action). The
court held that as there was a common question of law or
fact, the summary proceeding was essentially one to re-
cover money, and there was no demonstrable prejudice to
the tenants upon consolidation. Consolidation under
N.Y. CPLR 602(b) was warranted. The court also ordered
the tenants to tender payment of rent arrears directly to
the landlord from August 2004 to December 2004, and a
retroactive payment going forward from January 2005
until final disposition of the proceedings.
OUTCOME: The court granted the landlord's motion to
renew and reargue solely to the extent of granting re-ar-
gument, and the motion to consolidate was granted. The
court also granted the landlord's motion for use and oc-
cupancy, pendente lite, and the tenants were to tender to
the landlord payment of rent arrears.
CORE TERMS: tenant, landlord, summary proceeding,
consolidation, rent, occupancy, consolidate, question of
law, tort action, non-payment, movant, consolidated, dis-
covery, pendente lite, reargument, holdover, reargue,
counterclaim, remediation, renewal, lease, payment of
rent, reply papers, judicial economy, landlord-tenant,
non-movant, inure, warranty of habitability, warranty,
tenancy
LexisNexis(R) Headnotes
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Rent Recovery
[HN1] N.Y. RPAPL 745 (2)(a) provides that in a sum-

mary proceeding upon the second of two adjournments at
the request of the respondent, or, upon the 30th day after
the first appearance of the parties in court less any days
that the proceeding has been adjourned upon the request
of the petitioner, whichever occurs sooner, the court shall
direct that the respondent, upon an application by the pe-
titioner, deposit with the court within five days sums of
rent or use and occupancy accrued from the date the peti-
tion and notice of petition are served upon the respond-
ent, and all sums as they become due for rent and use and
occupancy.
Civil Procedure > Pleading & Practice > Pleadings >
Amended Pleadings > Leave of Court
[HN2] In a motion to reargue under N.Y. CPLR 2221(d)
the movant alleges that the court has misapprehended or
overlooked facts or the law, while a § 2221(e) motion for
leave to renew is premised on new facts or law not
offered on the prior motion that would change the prior
determination.
Civil Procedure > Pretrial Matters > Consolidation of
Actions
[HN3] The threshold question in considering any motion
to consolidate is whether there exists a common question
of law or fact between the causes of action that are to be
consolidated (N.Y. CPLR 602(a)). Consolidation is gen-
erally favored by the courts in the interest of judicial eco-
nomy and ease of decision making where there are com-
mon questions of law and fact, unless the party opposing
the motion demonstrates that consolidation will prejudice
a substantial right.
Civil Procedure > Pretrial Matters > Consolidation of
Actions
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Eviction Actions > Summary
Eviction
[HN4] Although the Civil Court may be the preferred
forum for expediently resolving landlord-tenant disputes,
the preference for maintaining summary proceedings in
that forum is not absolute. Rather, this preference may
lack justification under the facts of a given case, at which
point consolidation is appropriate so long as the legal
prerequisites are met.
Civil Procedure > Pretrial Matters > Consolidation of
Actions
[HN5] When considering consolidation, the courts must
apply the recognized standard for consolidation, to wit:
whether there are common questions of law and fact and
Page 148
an absence of prejudice to the non-movant, and where
such standard has not been satisfied, the court may con-
sider whether the movant has established that consolida-
tion is yet necessary in that the Civil Court does not have
power to adjudicate the claims before it.
Civil Procedure > Pretrial Matters > Consolidation of
Actions
[HN6] The language of N.Y. CPLR 602 permits consolid-
ation where there is a common question of law or fact.
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Eviction Actions > Summary
Eviction
[HN7] The mere fact that a case may be somewhat
delayed by consolidation will not suffice to bar it. In-
deed, it has been held that the delay in determination of
the non-payment proceedings will not cause prejudice
sufficient to justify denial of the motion to consolidate
where the parties' real controversy concerns money, not
possession of the premises and interest may be awarded
if landlord prevails.
Civil Procedure > Pretrial Matters > Consolidation of
Actions
[HN8] Even where there are common questions of law or
fact, consolidation is properly denied if the actions are at
markedly different procedural, stages and consolidation
would result in undue delay in the resolution of either
matter.
JUDGES: [*1] Justice Edmead
OPINION BY: Edmead
OPINION
MEMORANDUM DECISION 1
1 The Court wishes to thank Edward Yennock,
Seton Hall University School of Law, Class of
2006 for his significant contribution to this de-
cision.
In this personal injury action, defendant, Nostra Re-
alty Corporation ("landlord") moves pursuant to CPLR §
2221 for leave to renew and reargue its prior motion to
consolidate this action with its summary non-payment
proceeding against plaintiffs James Carroll and Debra
Carroll ("tenants") in Civil Court, New York County, In-
dex No. 103564/2001 (the "summary proceeding"). In
addition, the landlord petitions the Court to order pay-
ment of rent arrears and use and occupancy, pendente

lite, from tenants. 2
2 The landlord also moved pursuant to CPLR §
3124 and 3126 to compel tenants to submit to de-
positions. However, on March 1, 2005, counsel
for landlord advised the Court that depositions
were held, and its request to compel same is
moot.
[*2] The cases that the landlord seeks to consolid-
ate arise from a dispute with the tenants over the living
conditions at the residential premises of 845 West End
Avenue, Apartment 5E, New York, New York ("the
premises"), which the landlord has leased, and continues
to lease, to the tenants. Since 2001, the tenants have
tendered only four months rent, allegedly in response to
the ongoing existence of numerous defects and hazard-
ous conditions in the premises.
In October of 2001, the landlord commenced the
summary proceeding against the tenants in the Civil
Court of the City of New York. The tenants proffered the
affirmative defenses of breach of the warranty of habit-
ability as well as constructive eviction based on among
other things the presence of mold in the premises. The
tenants also alleged three counterclaims seeking: (1)
monetary damages based on the landlord's breach of the
warranty of habitability, (2) an order requiring the land-
lord to correct the dangerous conditions pursuant to the
Multiple Dwelling Law of the State of New York, the
Maintenance Code, Building Code and Health Code of
the City of New York, and Real Property Law 235-b, and
(3) attorney's fees, costs, and disbursements [*3] pursu-
ant to the lease and Real Property Law § 234.
Thereafter, in April of 2002, the tenants commenced
the instant action against the landlord alleging that they,
along with their two children Samantha and Zachary
Carroll, sustained severe and permanent mental and
physical injury as result of the landlord's negligence re-
garding the presence of toxic mold and asbestos in the
premises (the "tort action").
In the summary proceeding, tenants' and landlord's
applications for various forms of relief resulted in a stip-
ulation, dated December 11, 2002 (the "stipulation"),
wherein the landlord agreed to return the premises to a
"safe and habitable condition hereof, including without
limitation, Paragraph VI(d) of the Scope of Work, so that
the Respondents may resume their occupancy thereof
and the Petitioner may receive payment of the rent." The
parties also agreed that the determinations of mutually
selected third party contractors regarding remediation
and repair would be final and binding. 3 The landlord
subsequently undertook remediation and reconstruction
of the premises, which was completed approximately
one-and-a-half years later. During that period of remedi-
Page 149
ation, [*4] the tenants resided at a hotel, at the landlord's
expense pursuant to the terms of the stipulation.
3 After re-entering the premises, the tenants paid
rent for the month of July 2004, but have not paid
additional rent since that date.
Subsequently, in the tort action, the landlord moved
to consolidate the instant tort action with the summary
proceeding. The Court denied the motion based upon
case law 4 cited by the tenants which held that landlord-
tenant disputes should be removed from Civil Court only
when such forum cannot afford the parties complete re-
lief. The instant motion to renew/reargue ensued.
4 Scheff v. 230 East 73rd Owners Corp., 203
A.D.2d 151, 610 N.Y.S.2d 252 [1st Dept 1983].
In support of renewal and reargument, the landlord
contends that the Court misapprehended the posture of
the case, insomuch as it was [*5] the landlord, and not
the tenants, who moved to consolidate. Also, the land-
lord, as the movant, was willing to accept the delay in
prosecuting the summary non-payment proceeding. The
landlord also contends that the Court failed to consider
the landlord's reply papers, which were filed and submit-
ted in a timely fashion, when the underlying motion was
transferred to the Court. Therefore, reargument and re-
newal is warranted.
The landlord further argues that upon renewal and
reargument, the Court should grant consolidation in light
of parallel factual allegations set forth by the tenants in
both the summary proceeding and the tort action pertain-
ing specifically to the existence and remediation of mold
and moisture damage in the premises, and money dam-
ages arising therefrom. The landlord further argues that a
single trial is necessary because adjudication in either the
summary proceeding or the tort action will affect the oth-
er action, and alternatively, the issues maybe adjudicated
inconsistently. The landlord also cites judicial economy
as a justification for consolidation, in addition to its con-
tention that consolidation will result in reduced legal
costs for all parties.
The landlord [*6] further points out, inter alia, that
according to its reply papers the Civil Court's ability to
adjudicate the summary proceeding is of no moment, and
is in fact the incorrect standard for determining whether a
summary proceeding and a Supreme Court action should
be consolidated. As argued in its reply papers, Amtorg
Trading v. Broadway and 56th Street (191 A.D.2d 212,
594 N.Y.S.2d 204 [1st Dept. 1993]) stands for the pro-
position that consolidation of a summary proceeding and
a Supreme Court action pursuant to CPLR § 602(b) is
warranted so long as there is a common question of law
or fact between the two causes of action, and there will
 Page 150

be no prejudice to the non-movant if the motion is gran- whether the tenants suffered medical harm due to the
ted. The landlord contends that the tenants have failed to landlord's negligence.
demonstrate that any prejudice would inure to them if the
The tenants also argue that they should not be
cases were consolidated. Relying on Moretti v. 860 W.
ordered to pay rent arrears and [*9] use and occupancy.
Tower, Inc. (221 A.D.2d 191, 633 N.Y.S.2d 163 [1st Dept
Relying upon Hung-Thanh, Inc. v. Doktori (21 HCR
1995]), the landlord argues that the tenants' bare claim of
564A, NYLJ Oct. 28 1993, 27:3 [App Term 1st Dept])
prejudice arising from removal of the summary proceed-
and its progeny, the tenants claim that landlords are not
ing from its recognized forum, and the resultant delay
entitled to an award of use and occupancy pendente lite
thereof, is inadequate. Furthermore, the landlord argues
absent a showing of delaying tactics undertaken by the
that [*7] in contrast to Scheff v. 230 East 73rd Owners
tenant. 6 The tenants maintain that the summary proceed-
Corp. (supra), upon which the Court previously relied,
ing is ready for trial, and should proceed to trial accord-
consolidation is warranted because any delay in adjudic-
ingly. As such, the tenants contend that if the landlord is
ation of the summary proceeding will inure to the detri-
willing to suffer the prejudice and delay of consolidation,
ment of the movant, herein the landlord, which is willing
it must, consequently, forgo use and occupancy. The ten-
to accept the delay in the interest of avoiding two trials
ants further allege that there were numerous defects in
on the same issues.
the premises upon re-entry, including, but not limited to:
The landlord also argues that should the Court grant the existence of bags of "soft goods" left in the living
consolidation, the Court should order the tenants to pay room, cracked and discolored grout between bathroom
rent arrears and use and occupancy pendente lite. 5 The tiles, defective doorknobs, a faulty intercom, malfunc-
landlord notes that since 2001, the tenants have paid only tioning hot water valve (which had been repaired), an ab-
four months rent, including three months pursuant to an normality in the electrical system (which had been re-
Order of the Civil Court and the aforementioned July paired), and an improperly finished bedroom floor
2004 payment after remediation and reconstruction was (which had been repaired).
completed. The landlord contends that despite being fur-
nished with a newly renovated apartment which has been 6 These cases rely largely on New York Real
approved by a mutually selected environment consultant, Property Actions and Proceedings Law
the tenants will not pay rent absent a Court order. ("RPAPL") § 745 (2)(a), which sets specific para-
meters as to what type of delay will trigger an
5 Landlord seeks rent arrears for August and award of use and occupancy. The law states in
September 2004 at the rate of $ 2,809.66 per pertinent part:
month, and for October, November, and Decem-
ber 2004 at the rate of $ 2,992.29 per month, [HN1] "In a summary proceed-
totaling $ 14,596.19 for the entire period. Land- ing upon the second of two ad-
lord also seeks payment for use and occupancy, journments at the request of the re-
pendente lite, at the rate of $ 2,992.92 per month. spondent, or, upon the thirtieth day
after the first appearance of the
[*8] In opposition to renewal and reargument, the
parties in court less any days that
tenants argue primarily that neither Amtorg (supra) nor
the proceeding has been adjourned
Moretti (supra) warrant consolidation because those
upon the request of the petitioner,
cases are distinguishable upon their Facts. First, it is ar-
whichever occurs sooner, the court
gued, Amtorg addressed a commercial tenancy, as op-
shall direct that the respondent,
posed to a residential tenancy. More importantly, the ten-
upon an application by the peti-
ants note, in both Amtorg and Moretti, the controversy
tioner, deposit with the court with-
concerned the amount of rent due, and not possession of
in five days sums of rent or use
the premises. The tenants maintain that in the summary
and occupancy accrued from the
proceeding at hand, possession remains an issue. The
date the petition and notice of peti-
tenants also argue that unlike the cases relied upon by the
tion are served upon the respond-
landlord in which the cases sought to be consolidated
ent, and all sums as they become
were inextricably intertwined; here, the issues of rent
due for rent and use and occu-
abatements and counterclaims would remain even if the
pancy . . . ."
Supreme Court failed to find injury in the tort action. The
tenants posit that consolidation is inappropriate because
the standard for breach of warranty and constructive
eviction is whether the conditions in the premises posed [*10] Analysis
a danger to the health and safety of the tenants, not

Renewal and Reargument
Although the line between renewal and reargument
is often blurred, the landlord's motion is more properly
characterized as a motion for leave to reargue. [HN2] In
a motion to reargue under CPLR § 2221(d) the movant
alleges that the court has misapprehended or overlooked
Facts or the law, while a § 2221(e) motion for leave to
renew is premised on new Facts or law not offered on the
prior motion that would change the prior determination.
Here, the landlord's reply papers in the underlying mo-
tion were not available to and thus overlooked by the
Court, through no fault of the landlord. 7 The landlord, as
is proper in a motion for leave to reargue, draws the
Court's attention to case law contained in its reply pa-
pers, and not previously considered (see Macklowe v.
Browning School, 80 A.D.2d 790, 791, 437 N.Y.S.2d 11,
12 [1st Dept 1981]). Therefore, the landlord's motion for
leave to reargue is granted, and the Court will reconsider
the merits of the underlying motion to consolidate.
7 Although the order misapprehended the iden-
tity of the movant, the status of the movant as the
"landlord" had no bearing on the Court's prior de-
termination.
[*11] Motion to Consolidate
This case presents the Court with an opportunity to
synthesize First Department case law that has yet to ar-
ticulate a singular analysis to be used in determining
whether to consolidate a landlord-tenant summary pro-
ceeding with an action in Supreme Court.
[HN3] The threshold question in considering any
motion to consolidate is whether there exists "a common
question of law or fact" between the causes of action that
are to be consolidated (CPLR § 602(a)). "Consolidation
is generally favored by the courts in the interest of judi-
cial economy and ease of decision making where there
are common questions of law and fact, unless the party
opposing the motion demonstrates that consolidation will
prejudice a substantial right" (Amtorg, 191 A.D.2d at
213). Hence, the landlord's motion to consolidate is
based on the axiom that consolidation of actions sharing
a common question of law or fact is desirable in the in-
terests of judicial economy, unless prejudice may be
demonstrated by the non-movant.
Page 151
The tenants' argument against consolidation,
however, is based upon another recognized principle that
summary proceedings brought in Civil Court [*12]
should generally remain there since that court is expli-
citly designated to hear landlord-tenant disputes. Accord-
ing to the tenants, and the cases upon which they rely,
unless the movant can establish a necessity for consolid-
ation, the summary proceeding herein should remain in
Civil Court.
These basic principles, each meritorious on their
own, come into apparent conflict in the present matter.
The Court opines that [HN4] although the Civil Court
may be the preferred forum for expediently resolving
landlord-tenant disputes, the preference for maintaining
summary proceedings in that forum is not absolute.
Rather, this preference may lack justification under the
Facts of a given case, at which point consolidation is ap-
propriate so long as the legal prerequisites are met. The
dispute at bar represents such a case, and the landlord's
motion to consolidate is therefore granted.
Where the preference for consolidation and judicial
economy has intersected with the preference that sum-
mary proceedings remain in Civil Court, resolutions have
been disparate within the First Department. For example,
in Amtorg, on which the landlord relies in support of its
motion to consolidate, the court granted the [*13] ten-
ant's motion to remove and consolidate a summary hold-
over proceeding with a Supreme Court action for conver-
sion of the proceeds of a letter of credit used to secure a
lease (Amtorg, 191 A.D.2d at 213). The court reasoned
that consolidation was appropriate given that (1) there
were common questions of law and fact and (2) there
was no showing of "prejudice by defendants" since pos-
session of the premises was no longer an issue and the
only remaining issues were whether Amtorg became a
month-to-month tenant and the amount of rent due (Id.).
Similarly, in Atherton v. 21 East 92nd Street Corp.
(149 A.D.2d 354, 539 N.Y.S.2d 933 [1st Dept 1989]), the
First Department noted that the Supreme Court improp-
erly characterized the summary proceeding as one for
possession, and that as such, the Supreme Court's denial
of consolidation on the ground that the Civil Court had
power to determine issues in dispute was improper. Ac-
cording to the First Department, the "absence in the com-
plaint of any demand for possession, which is essential to
the maintenance of a summary proceeding renders the
Civil Court suit merely a plenary action for the recovery
of money." Therefore, consolidation [*14] of the Civil
Court summary proceeding for rent arrears and the Su-
preme Court action for damages for breach of implied
warranty of habitability was warranted since the "suits
involve[d] common questions of law or fact."
However, in 44-46 West 65th Apartment Corp. v.

Stvan (3 A.D.3d 440, 772 N.Y.S.2d 4 [2004]), on which
tenants primarily rely, the Appellate Division, First De-
partment addressed the potential of consolidating a sum-
mary holdover proceeding with a breach of contract ac-
tion in Supreme Court, and noted that neither party al-
leged that the Civil Court was incapable of resolving the
holdover proceeding, and had thus failed to demonstrate
the necessity for consolidation (Id. at 442). In 44-46, the
tenants moved to stay a holdover proceeding which was
commenced by their landlord in Civil Court two years
after the landlord had brought a breach of contract action
against the tenants in Supreme Court (Id. at 441). In
granting the stay, the Supreme Court found a "great deal
of coincidence" between the two proceedings. The First
Department, however, reversed, "given the distinct
nature of the respective causes and the prejudice to [*15]
plaintiff in depriving it of the appropriate recognized for-
um for a summary holdover proceeding" (Id. at 441-42).
Therefore, contrary to the tenants' contention, it ap-
pears that [HN5] when considering consolidation, the
Courts must apply the recognized standard for consolida-
tion, to wit: whether there are common questions of law
and fact and an absence of prejudice to the non-movant,
and where such standard has not been satisfied, the court
may consider whether the movant has established that
consolidation is yet necessary in that the Civil Court does
not have power to adjudicate the claims before it. In
cases where the Court has considered whether consolida-
tion was necessary, the First Department has found that
the necessity to consolidate did not exist.
Common Question of Law or Fact
The tenants' claims in both the summary proceeding
and the tort action arise from a common nucleus of Facts.
The tenants' claim for breach of the implied warranty of
habitability as well as their negligence claim turn sub-
stantially on the nature of the living conditions at 845
West End Avenue, and the degree to which the landlord
attempted to resolve the alleged inadequate conditions.
Contrary [*16] to the tenants' contention, that the
summary proceeding involves "rent" and the instant tort
action involves an "injury" ignores the reality that the de-
fense to the non-payment of rent, i.e., breach of warranty
of habitability, and the alleged injuries resulting from
landlord's negligence arises out of and are premised upon
the same Facts: the alleged the presence of toxic mold
and asbestos in the premises. The testimony and docu-
mentary evidence, if any, to support the allegations of
mold and its effect on the tenants are material and neces-
sary to both tenants' defense to the summary proceeding
and to their claims for damages for personal injuries.
Further, tenants' contention regarding the legal dis-
tinctions between the various causes of action and de-
Page 152
fenses at issue, different burdens of proof, uncommon
elements, and different forms of relief do not warrant a
different result. [HN6] The language of CPLR § 602 per-
mits consolidation where there is a "common question of
law or fact" (CPLR § 602(a)) (emphasis added). This
factor is met with ease under the circumstances herein.
Prejudice to the Non-movant
The tenants argue that prejudice [*17] will inure to
them both in the delay of the summary proceeding inher-
ent in consolidation, as well as the removal of the sum-
mary proceeding from its recognized forum, which in
this case, is capable of adjudicating the matter.
The Court observes that [HN7] "[t]he mere fact that
a case may be somewhat delayed by such consolidation
will not suffice to bar it" (Amtorg, 191 A.D.2d at 213).
Indeed, it has been held that the "delay in determination
of the nonpayment proceeding will not cause prejudice
sufficient to justify denial of the motion [to consolidate
where] the parties' real controversy concerns money, not
possession of the premises" and interest may be awarded
if landlord prevails (Moretti v. 860 West Tower, 221
A.D.2d 191, 192, 633 N.Y.S.2d 163 [1st Dept 1995]). The
tenants' characterization of the summary proceeding as
one primarily about possession as opposed to money is
inaccurate. The summary proceeding at issue, a dispute
concerning rent arrears, is clearly a controversy about
money, not possession (see Atherton v. 21 East 92nd
Street Corp., 149 A.D.2d 354, 539 N.Y.S.2d 933 (finding
that the "absence in the complaint of any demand for
possession, which is essential to the maintenance [*18]
of a summary proceeding renders the Civil Court suit
merely a plenary action for the recovery of money"]).
The tenants' attempts to frame the nature of the summary
proceeding as one about possession do not pass muster;
although the tenants in Amtorg were out of possession
whereas the tenants in the case at bar maintain posses-
sion, such distinction does not render possession the
central controversy of the summary proceeding at bar as
the tenants contend. That Amtorg involved a commercial
tenancy as opposed to a residential tenancy, as pointed
out by the tenants, is of no moment.
Indeed, a landlord may suffer monetary prejudice if
forced to delay recovery from a tenant in a non-payment
proceeding, and, a dispute over possession adds an ele-
ment of urgency that would militate in favor of maintain-
ing the summary proceeding in Civil Court. However,
any delay of the summary proceedings does not operate
as a bar to consolidation because the party here, the land-
lord, prejudiced by the delay in the resolution of its sum-
mary non-payment proceeding supports, consolidation
and acquiesces to the delay of the monetary relief it
seeks to recover. Even though the landlord seeks use and
occupancy [*19] from the time the tenants re-entered the

premises, the landlord has willingly accepted the preju-
dice of the delay in the determination of its claim in the
summary proceeding for past rent allegedly due.
Furthermore, there are no Facts in the record demon-
strating that the delay in resolution of the summary pro-
ceeding would inure to the detriment of the tenants in lit-
igating their defense to such proceeding. To accept the
tenants' conclusory argument that they will be prejudiced
by delay of the summary proceeding, is to adopt the no-
tion that delay is tantamount to prejudice per se. The
Court rejects this notion. Rather, since the controversy in
the summary proceeding is one about payment and not
possession, tenants cannot establish that they will suffer
prejudice through delay of its resolution. While the ten-
ants may have a legitimate desire to see the proceedings
end as soon as possible, this is not prejudice that could
tip the scales against consolidation.
It has been held that[HN8] "[e]ven where there are
common questions of law or fact, consolidation is prop-
erly denied if the actions are at markedly different pro-
cedural, stages and consolidation would result in undue
delay in the [*20] resolution of either matter" (Abrams
v. Port Auth. Trans-Hudson Corp., 1 A.D.3d 118, 766
N.Y.S.2d 429 [1st Dept 2003]). In Abrams, the First De-
partment affirmed the denial of consolidation of a sum-
mary proceeding already on the trial calendar with a Su-
preme Court case that had barely advanced to discovery,
on the ground that consolidation would delay both the
resolution of the Civil Court action and the trial of the
consolidated action. In the instant case, the summary
proceeding which, according to the tenants, "could be re-
stored," is not on the trial calendar. And, the parties are
proceeding with discovery in the tort action and have
held depositions. Further, this Court could also place the
instant tort action, as consolidated, on a "rocket docket"
expedited discovery schedule. In any event, given that
any prejudice in the delay of the prosecution of the sum-
mary, proceeding inures to the detriment of the movant
for consolidation herein, the holding, in Abrams is not
controlling under the circumstances herein.
Cases also evince a presumption in favor of main-
taining a summary proceeding in Civil Court, and the
cases that adhere to this presumption [*21] take for
granted that the non-movant will be prejudiced by the re-
moval of the summary proceeding from Civil Court.
Thus, the First Department has held that "depriving [a
party] of the appropriate recognized forum for a sum-
mary holdover proceeding" may be prejudicial (44-46, 3
A.D.3d at 442). However, transferring the summary pro-
ceeding at issue from a "recognized" forum to the Su-
preme Court does not amount to prejudice per se, espe-
cially since, the summary proceeding here is not a hold-
over proceeding, but one for non-payment of rent.
Page 153
Consolidation is further warranted based on the risk
of inconsistent judgments as between the tenants' de-
fenses and counterclaims in Civil Court, and their claims
in Supreme Court. Given that the outcome of both pro-
ceedings hinges upon largely the same set of operative
Facts, namely, the existence (or non-existence) of un-
healthy living conditions and the action (or inaction) of
the landlord with regard to these conditions, the risk of
inconsistent judgments is acute. 8 The same factual over-
lap speaks to the desirability of consolidation for the pur-
pose of judicial economy as well (see, e.g., Cinelli v.
Gillman, 68 A.D.2d 854, 855, 414 N.Y.S.2d 556, 557 [1st
Dept 1979] [*22] [keeping actions separate would result
in "substantial duplication of evidence"]). Although the
purpose of a summary proceeding is to resolve landlord-
tenant disputes in an expeditious fashion, such purpose is
undermined in light of the tenants' affirmative defenses
and counterclaims, which beg discovery. To force the
landlord to proceed in Civil Court and rebut these de-
fenses and counterclaims without the benefit of discov-
ery would amount to prejudice by the movant.
8 By way of example, it would be entirely in-
consistent for the landlord to be held responsible
for serious illness contracted by its tenants in the
negligence action yet at the same time, to find
that the implied warranty of habitability was not
breached in the summary proceeding.
Accordingly, as there is a common question of law
or fact, the summary proceeding is essentially one to re-
cover money, and there is no demonstrable prejudice to
the tenants upon consolidation, consolidation under
CPLR § 602(b) [*23] is warranted (see, Moretti v. 860
West Tower, 221 A.D.2d 191, 633 N.Y.S.2d 163, supra
[where cases involved common questions of law and fact
and plaintiff would be unable to obtain full redress of her
negligence and injunctive relief claims in the non-pay-
ment proceeding, delay in determination of non-payment
proceeding will not cause sufficient prejudice and parties'
real controversy involves money, not possession, consol-
idation is warranted]).
Payment of Rent Arrears and Use and Occupancy
The Supreme Court retains broad discretion in de-
ciding whether to compel payment of use and occupancy
pendente lite (Alphonse Hotel Corp. v. 76 Corp., 273
A.D.2d 124, 710 N.Y.S.2d 890 [1st Dept 2000]). Payment
of use and occupancy pendente lite "accommodates the
competing interests of the parties in affording necessary
and fair protection to both and preserves the status quo
until a final judgment is rendered" (MMB Assoc. v. Day-
an, 169 A.D.2d 422, 564 N.Y.S.2d 146, 147 [1st Dept
1991]).
According to the December 2002 stipulation, the

tenants' resumption of occupancy and payment of rent in
correlation therewith was conditioned upon restoration of
the premises to a "safe and habitable [*24] condition."
For the purposes of the instant motion, the tenants' re-
entry of the premises and payment of July 2004 rent
strongly indicate that the landlord substantially complied
with the stipulation and Scope of Work, and that the
premises were safe and habitable in July of 2004 and go-
ing forward. Thus, having entered into possession, ten-
ants should not now be permitted to reap the benefits of
occupancy and, at the same time, avoid the payment of
rent (see Eli Haddad Corp. v. Cal Redmond Studio, 102
A.D.2d 730, 731, 476 N.Y.S.2d 864, 866 [1st Dept 1984];
9
see also Abright v. Shapiro, 92 A.D.2d 452, 458
N.Y.S.2d 913 [1st Dept 1983] [where landlord's summary
proceedings in Civil Court against certain doctors was
consolidated with a Supreme Court action for declaratory
that their apartments were rent stabilized, denial of land-
lord's application for an injunction prohibiting tenants
from continued use and occupancy of the premises was
conditioned upon payment of current rent as it became
due . . . ]).
9 Though the controversy between landlord and
tenant in Eli Haddad was very different than the
present case, the court's declaration encapsulates
the untenable nature of the tenants' position.
[*25] The Court observes that the stipulation states
that the parties shall be bound by the remediation and
property determinations of the company mutually chosen
to facilitate the work done to the premises. As such, the
tenants have no grounds to withhold rent based on soft
goods left in their living room, or for other defects (im-
properly-functioning intercom, cracked and discolored
bathroom tiles, improperly finished bedroom floor, ex-
posed Sheetrock, etc. . . . ) which may or may not have
already been cured, but still do not render the premises
unsafe and uninhabitable so as to justify rent-free living
until final disposition. Additionally, the existence of
housing code violations on the premises cannot be said to
summarily entitle the tenants to disturb the status quo
and withhold rent at this juncture; this is an issue for trial
(see Park West Mgt. Corp. v. Mitchell, 47 N.Y.2d 316,
327, 391 N.E.2d 1288, 418 N.Y.S.2d 310, 316 [1979]
["[A] simple finding that conditions on the lease
premises are in violation of an applicable housing code
does not necessarily constitute automatic breach of the
warranty. In some instances, it may be that the code viol-
ation is de minimis or has no impact upon habitability]).
[*26] The tenants' reliance on Hung-Thanh and its
progeny to rebuff the landlord's motion for rent arrears
and use and occupancy is misplaced. In Hung-Thanh, the
tenant had not sought any adjournments (see RPAPL §
745, subd. 2[a]), moved to stay the proceeding, or other-
Page 154
wise sought the favor of the court; indeed, any delay of
the trial in the matter was occasioned by the landlord's
own request for disclosure. Therefore, according to the
First Department, in such procedural posture, it was im-
provident for the court to require interim rent payments
to the landlord. However, the tenants herein are seeking
favorable relief from this court, in the form of its person-
al injury action, and, the nature of the tenants' defense
and counterclaim to non-payment and affirmative action
in Supreme Court necessitates discovery and any con-
comitant delay associated with such discovery.
Accordingly, the Court hereby orders the tenant to
tender payment of rent arrears, directly to the landlord,
from August 2004 through December 2004 in the amount
of $ 14,596.19, as well as $ 2,992.92 per month retroact-
ively from January 2005 going forward until final dis-
position of the proceedings. [*27] 10 This payment pre-
serves the status quo between landlord and tenants until
final judgment (MMB Assoc., 169 A.D.2d at 422). Fur-
ther, the payment represents no prejudice to the tenants
as they may be entitled to an appropriate refund or rent
credit should their claims prove meritorious (East 4th St.
Garage, Inc. v. Estate of Berkowitz, 265 A.D.2d 249, 697
N.Y.S.2d 266, 267 [1st Dept 1999]).
10 While the tenants contend that it is inappro-
priate to award rent arrears and use and occu-
pancy to the landlord, they do not contest the ac-
curacy of the rent amounts sought by the land-
lord. Furthermore, the tenants request to have the
moneys deposited into the Himmelstein McCon-
nell escrow account is denied.
As the tenant has failed to justify non-payment of
rent pursuant to the parties' lease agreement during the
pendency of these proceedings, in this Court's discretion,
defendant's application for use and occupancy is granted.
Accordingly, it is hereby
ORDERED that defendant's motion to renew and
[*28] reargue is granted solely to the extent of granting
reargument; and it is further
ORDERED that the motion pursuant to CPLR §
602(b) to consolidate is granted and the above-captioned
action is consolidated in this Court with Nostra Realty
Corporation v. Debra Carroll and James Carroll, Index
No. 103564/01 (Civil Court, New York County) for dis-
covery and trial purposes only; and it is further
ORDERED that defendant's motion for use and oc-
cupancy, pendente lite, is granted, and the tenants shall
tender to landlord payment of rent arrears for August and
September 2004 at the rate of $ 2,809.66 per month, and
rent arrears for October, November, and December 2004
at the rate of $ 2,992.29 per month, and $ 2,992.92 per
 Page 155

month for January through March 2005, within 30 days ORDERED that the note of issue shall be filed by
of service of this order with notice of entry; tenants shall April 11, 2005; and it is further
also tender $ 2,992.92 per month for April 2005 and con-
ORDERED that defendant shall serve a copy of this
tinuing each month thereafter as such payment becomes
order with notice of entry upon all parties within 20 days
due pursuant to the lease agreement; such payments shall
of entry.
be made without prejudice; and it is further
The foregoing shall constitute the decision 11
and or-
ORDERED that the Clerk of Civil Court, New York
der of the court.
County, shall transfer the papers on file in Nostra Realty
Corporation v. Debra Carroll and James Carroll under In-
11 This decision has been modified for publica-
dex No. 103564/01 [*29] to the Clerk of this Court upon
tion.
service of a certified copy of this order and payment of
the appropriate fee, if any; and it is further

49 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

[*1] Janine Gordon, Plaintiff, v. Grace Roselli, a/k/a Grace Louhaichy, and Vera
Realty Corp., Defendants.

17392/97

SUPREME COURT OF NEW YORK, KINGS COUNTY

2004 NY Slip Op 51140U; 5 Misc. 3d 1001A; 798 N.Y.S.2d 709; 2004 N.Y. Misc. LEXIS
1659

June 29, 2004, Decided

NOTICE: THIS OPINION IS UNCORRECTED

AND WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.
DISPOSITION: Defendant Vera Realty's motion for
summary judgment granted in its entirety.
CORE TERMS: dog's, foot, apartment, vicious
propensities, landlord, swing, tire, strict liability, dog
bite, tenant's, toy, summary judgment, aggressive, vi-
cious, bitten, roam, deposition, attacked, dog owner,
causes of action, full knowledge, personal knowledge,
relieved, notice, roommate, clothing, lunged, thigh,
sleep, bed
HEADNOTES
[***709] [**1001A] Animals--Liability for Anim-
al Bite.
JUDGES: David I. Schmidt, J.
OPINION BY: David I. Schmidt
OPINION
David I. Schmidt, J.
Defendant Vera Realty Corporation (Vera) moves,
pursuant to CPLR 3212, for summary judgment dismiss-
ing the complaint of plaintiff Janine Gordon as well as
any cross-claims asserted against it.
This action arises out of an incident that occurred on
January 18, 1997, in which plaintiff was attacked and bit-
ten by a dog owned by Grace Roselli a/k/a Grace Louha-
ichy (Roselli). At the time of the accident, plaintiff and
Roselli were living as roommates in a building owned by
Vera and located at 68 John Street in Brooklyn. Plaintiff

and Roselli entered into a lease, signed by both women
as co-tenants, for a five-year period beginning October 1,
1996. Plaintiff testified at her deposition that she had
been introduced to Roselli's dog, a mixed-breed pit bull
[*2] named Tar, at Roselli's previous apartment, which
was located in another building owned by Vera (or a re-
lated entity) and located at 68 Jay Street in Brooklyn.
Plaintiff stated that sometime in late 1995 or early 1996
Roselli informed her of Tar's previous aggressive behavi-
or, including incidents in which the dog bit a woman on
the thigh inside an apartment in Manhattan, ripped the
clothing of a man in the elevator of 68 Jay Street, and
lunged at and tore the clothing of a homeless man who
asked for change. Despite her knowledge of Tar's vicious
behavior, plaintiff agreed to move in with Roselli and Tar
in October 1996. After the two women moved into the
apartment, they often allowed Tar to roam unrestrained
around the space. Plaintiff cared for Tar when Roselli
was on vacation, at times letting the dog sleep with her in
her bed.
On the day of the incident, plaintiff testified that she
and Roselli had been cleaning the apartment and were
chatting in Roselli's room. Plaintiff rested her foot on a
tire swing, which was suspended from the ceiling as a
toy for Tar. Plaintiff was aware that the dog sometimes
swatted at the tire swing with his paws and gnawed on
the tire. After plaintiff placed her foot on the tire, she
stated that Tar placed his mouth over her foot. Plaintiff
then removed her foot from the tire swing. Roselli chas-
tised Tar and then placed her foot on the swing to see if
Tar would respond in the same manner. When Tar did not
respond to Roselli's foot on the swing, plaintiff, at Rosel-
li's request, placed her foot on the swing once more to
test the dog's reaction. This time, Tar lunged at plaintiff,
biting her thigh in two places. Plaintiff's injuries required
at least 40 sutures and a skin graft.
On or about May 14, 1997, plaintiff commenced the
instant action against Vera and Roselli. Roselli was dis-
missed from the action based on lack of service but was
subsequently reinstated through the commencement of a
new action and consolidation. Roselli later issued a no-
tice of bankruptcy to plaintiff and obtained discharge of
debtor status on or about October 21, 1999. Roselli's at-
torneys then moved to withdraw as her counsel in this
action and were permitted to do so; it appears from the
record that she remains unrepresented by counsel.
In her complaint, plaintiff outlines two causes of ac-
tion against Vera, the movant herein, one sounding in
strict liability and one in negligence. Plaintiff asserts that
Joshua Guttman, the principal of Vera, knew of Tar's vi-
cious propensities and maintained control over the sub-
ject apartment. In support of such allegation, plaintiff
presents the affidavit of Sharon Strassfeld, who mediated
Page 156
a dispute between plaintiff and Guttman over a rent pay-
ment issue, in which she states that Guttman said at the
mediation that he knew of Tar's vicious propensities and
of a prior incident in which Tar attacked a man at 68 Jay
Street, a building which he owned.
In support of its motion for summary judgment, Vera
presents Guttman's deposition testimony, in which he
states that he had seen the dog before the subject acci-
dent but was not aware that the dog had bitten anyone
before it attacked plaintiff. At his deposition, Guttman
claimed that he did not know of the dog's vicious
propensities and did not remember saying that he knew
the dog was dangerous. Vera also alleges that plaintiff's
actions in placing her foot on the tire swing constituted
an intervening act and superceding cause of the dog bite,
relieving the landlord of liability.
"To recover against a landlord in strict liability for a
dog bite, a plaintiff 'must prove that the landlord had no-
tice that the dog was being harbored on the premises, and
that the landlord knew or should have known that the
dog had vicious propensities'" (Wilson v Livingston, 305
A.D.2d 585, 586, 762 N.Y.S.2d 408 [2003], quoting Ma-
daia v Petro, 291 A.D.2d 482, 738 N.Y.S.2d 676 [2002]).
However, even though [*3] liability in dog bite cases is
absolute and not dependant on proof of negligence, a dog
owner can be relieved of liability where it can be shown
that the injured plaintiff had full knowledge of the dog's
vicious propensities and voluntarily brought about the in-
jury (Morales v Quinones, 72 A.D.2d 519, 420 N.Y.S.2d
899 [1979]). Thus, it logically follows that a landlord,
who has less control over a dog than an owner, can be re-
lieved from liability in the same situation. In Vannucci v
Vannucci (180 Misc. 2d 182, 687 N.Y.S.2d 882 [1999]),
the court held that the adult son of the dog's owners, who
was bitten by his parents' dog while visiting their resid-
ence, could not recover for his injury based on strict liab-
ility since he had personal knowledge of the dog's vi-
cious propensities. That court found that the plaintiff's
personal knowledge of the dog "removes this case from
those situations where strict liability must be imposed"
(id. at 184; see also Di Grazia v Castronova, 48 A.D.2d
249, 368 N.Y.S.2d 898 [1975]).
In the instant case, plaintiff chose to move into an
apartment with Tar, in spite of her knowledge of the
dog's previous vicious behavior. Plaintiff did not require
that her roommate keep the dog chained or caged, but al-
lowed the dog to roam the apartment and to sleep on her
bed. At the time of the accident, plaintiff placed her foot
on the dog's toy, even after the dog reacted aggressively
to her doing so. In such a situation, plaintiff's behavior in
light of her knowledge of the dog's vicious propensities
removes this situation from one where strict liability
would be appropriate.
 Page 157

Plaintiff's other cause of action against Vera sounds
in negligence. While it is clear that a landlord has a duty
to protect third parties from the dog of a tenant where
the landlord has knowledge of the dog's vicious
propensities and control of the premises, no liability
should attach where the plaintiff assumed the risks in-
volved in her situation (see Arbegast v Bd. of Ed. of
South New Berlin Cent. Sch., 65 N.Y.2d 161, 480 N.E.2d
365, 490 N.Y.S.2d 751 [1985]; Hommel v Benshoff, 178
Misc. 2d 1038, 682 N.Y.S.2d 546 [1998]). Here, plaintiff
assumed the risks entailed by living with an aggressive
dog when she moved into the apartment with Tar with
full knowledge of his previous aggressive behavior, and
when she placed her foot on Tar's toy after his previous
violent reaction. "It is well-established that the doctrine
of implied assumption of the risk may be a viable de-
fense in so-called dog bite cases" (Pisciotta v Parisi, 155
A.D.2d 422, 422, 547 N.Y.S.2d 352 [1998]). Plaintiff's
injuries were precipitated by her own actions, including
living with the dog, allowing the dog to roam free in the
apartment, and placing her foot on the dog's toy (see
Seiden v A. Silmac Glass Corp., 251 A.D.2d 141, 674
N.Y.S.2d 316 [1998]). While the dog had vicious
propensities of which the landlord may or may not have
been aware, plaintiff was fully aware of such propensit-
ies and nevertheless engaged in the above-described be-
havior. "Obviously, there can be no negligence on the
part of the owner in not instructing a person as to that
which he already knows; and if, before injury, such per-
son ascertain all the information which could have been
imparted to him, he is thereafter charged with knowledge
thereof" ( Hosmer v Carney, 228 N.Y. 73, 76, 126 N.E.
650 [1920]). Similarly, negligence cannot be imputed to
a landlord for not protecting a tenant from a dog living
in her own apartment, where such tenant admittedly had
full knowledge of the dog's vicious history and where
such tenant's actions served to bring about the attack.
Accordingly, defendant Vera Realty's motion for
summary judgment is granted in its entirety.
The foregoing constitutes the decision, order and
judgment of the court.
Dated: June 29, 2004 [*4]

50 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

William T. Kivlehan, Plaintiff, v. 2220 Adams Place Realty Corporation, Defendant.

Index No:15373-00

SUPREME COURT OF NEW YORK, BRONX COUNTY

2 Misc. 3d 851; 774 N.Y.S.2d 626; 2003 N.Y. Misc. LEXIS 1697

October 31, 2003, Decided

DISPOSITION: [***1] Defendant's motion for sum- 's complaint.

mary granted.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff police officer
filed a complaint against defendant realty corporation
seeking recovery based on common law negligence and
N.Y. Gen. Mun. Law § 205-e. The corporation filed an
application for summary judgment to dismiss the officer-
OVERVIEW: During a drug patrol, the officer injured
his wrist breaking the glass on the outer door of an apart-
ment building when he heard his fellow officers call for
help. He contended that the corporation's locking of the
outer vestibule door constituted negligence per se. The
court held that the actions undertaken by the corporation
could not reasonably be construed as negligence. The
corporation contacted the police and the tenant whose
brother was selling drugs; the building was enrolled in

the "Clean Halls Program;" the outer vestibule door was
locked; and any and all information of which the corpor-
ation's president was possessed was turned over to the
police department. Further, the firefighter's rule barred
the officer's action in common law negligence. It was the
presence of the drug dealers that created the need for the
officer's presence. If the corporation owed a duty to the
officer, it was discharged when keys to the outer door
were given to his employer for his use. Finally, there was
no violation of N.Y. Mult. Dwell. Law § 50-a, as the law
did not prohibit the locking of the outer doors. The ten-
ants chose to have the doors locked after 10 p.m. for
their safety.
OUTCOME: The application for summary judgment
was granted in its entirety. The officer's complaint was
dismissed.
CORE TERMS: door, outer, locked, tenant, police of-
ficer, vestibule, common-law, police department, drug
dealer, causes of action, landlord, front, lobby, drug
activity, locking, multiple dwelling, summary judgment,
entrance, front door, intercom, evict, inner, suspected,
apartment, street, wrist, fled, radio, public access, fire-
fighter
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Burdens of
Production & Proof > General Overview
Civil Procedure > Summary Judgment > Opposition >
General Overview
Torts > Negligence > General Overview
[HN1] In order to succeed, a cause of action must be
based on more than speculation. Moreover, conjecture
alone does not suffice to defeat a motion for summary
judgment.
Torts > Negligence > General Overview
Torts > Premises Liability & Property > Lessees &
Lessors > Liabilities of Lessors > Negligence > General
Overview
[HN2] A common law negligence cause of action cannot
be predicated upon the alleged negligence that created
the need for the plaintiff's services.
Torts > Negligence > General Overview
Torts > Premises Liability & Property > General
Premises Liability > Defenses > Firefighter's Rule
[HN3] Pursuant to the firefighter's rule, police officers
may not recover in common law negligence for line-of-
Page 158
duty injuries resulting from risks associated with the par-
ticular dangers inherent in that type of employment. The
scope of the bar to recovery is that the firefighter rule
precludes a police officer from recovering in tort when
the performance of his duties increased the risk of the in-
jury happening, and did not merely furnish the occasion
for the injury. Continued application of the bar is
presently grounded on the public policy against awarding
damages to police for hazards that create a need for their
services and which they are hired, specially trained, and
compensated to confront.
Torts > Negligence > General Overview
Torts > Premises Liability & Property > General
Premises Liability > Defenses > Firefighter's Rule
[HN4] The determinative factor in applying the firefight-
er rule's bar is whether the injury sustained is related to
the particular dangers which police officers are expected
to assume as part of their duties. The necessary connec-
tion is present where the performance of the police of-
ficer's duties increased the risk of the injury happening,
and did not merely furnish the occasion for the injury. In
other words, where some act taken in furtherance of a
specific police function exposed the officer to a
heightened risk of sustaining the particular injury, he or
she may not recover damages for common law negli-
gence.
Torts > Negligence > General Overview
[HN5] Under New York law, a plaintiff may establish
negligence by showing: (1) the existence of a duty on the
defendant's part as to the plaintiff; (2) a breach of that
duty; and (3) injury suffered by the plaintiff as a result of
that breach.
Torts > Negligence > Duty > General Overview
[HN6] Duty is essentially a legal term by which the court
expresses its conclusion that there can be liability. It tells
the court whether the risk to which one person exposes
another is within the protection of the law. In fixing the
bounds of that duty, not only logic and science, but
policy play an important role.
Governments > Local Governments > Claims By &
Against
Torts > Negligence > Proof > Violations of Law > Gen-
eral Overview
[HN7] To assert a cause of action under N.Y. Gen. Mun.
Law § 205-e, a plaintiff must identify a statute or ordin-
ance with which the defendant failed to comply and
must, in addition, set forth facts from which it may be in-

ferred that the defendant's negligence directly or indir-
ectly caused harm to the police officer.
Torts > Negligence > Proof > Violations of Law > Gen-
eral Overview
[HN8] See N.Y. Gen. Mun. Law § 205-e(1), (3).
Governments > State & Territorial Governments > Po-
lice Power
[HN9] See N.Y. Mult. Dwell. Law § 50-a.
Torts > Negligence > Proof > Violations of Law > Or-
dinances
Torts > Negligence > Proof > Violations of Law > Stat-
utes
[HN10] As a rule, violation of a state statute that imposes
a specific duty constitutes negligence per se, or may even
create absolute liability. By contrast, violation of a muni-
cipal ordinance constitutes only evidence of negligence.
Governments > State & Territorial Governments > Po-
lice Power
Torts > Negligence > Proof > Violations of Law > Stat-
utes
[HN11] For the purpose of negligence per se, the stat-
utory language of N.Y. Mult. Dwell. Law § 50-a neither
mandates a locked outer vestibule door, nor prohibits it.
The language of that section merely states that public ac-
cess is to be given to the main entrance or lobby.
Governments > State & Territorial Governments > Po-
lice Power
[HN12] The gist of N.Y. Mult. Dwell. Law § 50-a is to
provide access to the intercom system for the conveni-
ence of the tenants of the building so that they may, from
the safety of their residence, determine whether or not
they wish to allow a visitor into the building.
Civil Procedure > Summary Judgment > Standards >
Appropriateness
[HN13] Summary judgment is appropriate when, after
drawing all reasonable inferences in favor of the party
against whom summary judgment is sought, no reason-
able trier of fact could find in favor of the non-moving
party.
HEADNOTES
Negligence -- Maintenance of Premises -- Illicit
Page 159
Drug Activity
1. In an action by a police officer to recover against
the owner of a multiple dwelling for injuries he sustained
when he cut his wrist while attempting to enter the
locked front door of the building in order to assist other
officers who were arresting a suspected drug dealer who
had fled into the building, the owner of the building was
not negligent for failing to take more aggressive steps to
evict a tenant who was the brother of the suspected drug
dealer. Defendant owner's actions could not be con-
sidered as mere acquiescence in the brother's presence
around the building where the owner contacted the po-
lice, contacted the tenant, enrolled the building in a pro-
gram that enlisted police support in keeping the premises
free of trespassers, locked the outer vestibule door, and
turned over all information it possessed to the police.
Negligence -- Maintenance of Premises -- Failure
to Evict Tenant Based on Illicit Drug Activity
2. In an action by a police officer to recover against
the owner of a multiple dwelling for injuries he sustained
when he cut his wrist while attempting to enter the
locked front door of the building in order to assist other
officers who were arresting a suspected drug dealer who
had fled into the building, the failure of the owner of the
building to evict a tenant who was the brother of the sus-
pected drug dealer did not provide an appropriate basis
on which to make a finding of negligence. Sustaining
plaintiff's contention would require speculation that any
eviction proceedings would have terminated in the de-
fendant's favor and that the proceedings would have been
completed before this incident occurred.
Negligence -- Injuries to Police Officers -- Illicit
Drug Activity
3. A police officer may not recover on a common-
law negligence claim against the owner of a multiple
dwelling for injuries he sustained when he cut his wrist
while attempting to enter the locked front door of the
building in order to assist other officers who were arrest-
ing a suspected drug dealer who had fled into the build-
ing. A common-law negligence cause of action cannot be
predicated upon the alleged negligence that created the
need for the plaintiff's services, and it was the presence
of illicit drug activity that created the need for the
plaintiff's presence. In addition, during the apprehension
of the drug dealer, it was the exigent circumstances cre-
ated by the need to assist the officers who were engaged
in apprehending the perpetrator that caused plaintiff to
sustain his injuries. Plaintiff's performance of his duties
exposed him to "the heightened risk" of sustaining injury,
thereby negating recovery.
Negligence -- Injuries to Police Officers -- Viola-
tion of Statute -- Locked Front Vestibule Door of
 Page 160

Multiple Dwelling was drug sales which were taking place in

front of defendant's building . . . [The
4. General Municipal Law § 205-e, which permits
p]laintiff [***2] was stationed on the roof
recovery by a police officer where a defendant's violation
of an adjacent building observing activit-
of a statute or ordinance caused harm to the officer, did
ies taking place in front of [the building
not provide a basis for an officer to recover against the
when he] observed a male Latino [later re-
owner of a multiple dwelling for injuries he sustained
vealed to be Mel Apodaca, the brother of
when he cut his wrist while attempting to enter the
one of the tenants in the building] con-
locked front door of the building in order to assist other
ducting drug sales . . . [The drugs were
officers who were arresting a suspected drug dealer who
being stored in a] baby carriage . . . [The
had fled into the building. Locking of the outer door after
plaintiff] relayed this information to his
10:00 p.m. was not a violation of Multiple Dwelling Law
partner [who then entered a radio patrol
§ 50-a, which neither mandates a locked outer door nor
car with two other officers]. When Mr.
prohibits it. The tenants of the building agreed to, and in-
Apodaca observed the patrol car ap-
sisted upon, the locking of the outer door so as to better
proaching the premises, he fled into the
insure their safety in the building. It would be repugnant
building, followed shortly thereafter by
to interpret section 50-a in a manner that gives public ac-
the three police officers . . . [The plaintiff]
cess to the premises a higher priority over safety consid-
left the adjacent rooftop . . . to assist in the
erations of the inhabitants of the building. Moreover,
apprehension. While en route to the front
plaintiff failed to refute defendant's contention that the
of 2220 Adams Place, [the plaintiff] heard
police department was given keys to the building. The
his fellow officers calling for help on the
failure of the police department to distribute keys to of-
police radio . . . Upon arriving at the front
ficers who may need access to the property should not be
door of 2220 Adams Place, [the plaintiff]
shifted to the defendant.
found that the outer door to the premises
was locked. The building had a vestibule
COUNSEL: Wilson, Elser, Moskowitz, Edelman &
area with a door communication intercom
Dicker, LLP, New York City (Brett R. Leitner of
system to permit tenants to buzz open the
counsel), for defendant. O'Brien, McLaughlin & Kenny,
interior entry door to the hallway of the
Lynbrook (William J. McLaughlin of counsel), for
premises . . . [The plaintiff] began yelling
plaintiff.
and knocking on the windows of the ad-
joining apartment in the hope that
JUDGES: Gerald Esposito, J.
someone [***3] would open the outer
door . . . Realizing that he could no longer
OPINION BY: Gerald Esposito
stand by and wait for someone to open the
locked door for him, [the plaintiff] broke
OPINION
the glass in the door with his portable ra-
[**628] [*852] Gerald Esposito, J. dio and put his hand through the glass to
unlock the door. Unfortunately, in the
Motion by defendant for summary judgment to dis-
course of this process, [the plaintiff] seri-
miss plaintiff's complaint is decided in accordance with
ously injured himself, suffering a severe
the following:
laceration to the right hand and wrist . . .
[*853] In this action, the plaintiff seeks recovery After gaining access to the vestibule, a
for an injury he sustained to his wrist on August 24, [*854] second officer came by and, time
1999. On that date, the plaintiff was employed as a police being of the essence, broke the glass to
officer with the New York City Police Department in the the interior door and the two officers
Tracer Unit, in the 48th Precinct, Bronx, New York. The entered the premises and proceeded to the
Tracer Unit concentrates on drug enforcement tactics fifth floor to assist in the arrest of Mr.
within problem areas of a given precinct. As stated in the Apodaca."
affirmation in opposition, the plaintiff's version of how
he was injured is as follows:
As stated in plaintiff's examination before trial, a
"During the course of his tour [of duty]
copy of the transcript of which is annexed to the moving
on August 24, 1999, the Tracer Unit was
papers as exhibit D (hereinafter referred to as plaintiff's
involved in a street narcotics enforcement
tr.), the incident took place between 11:30 and 12:00
unit operation. The target of this operation

p.m. (Plaintiff's tr. at 27.) He did not recall the address of
the adjacent building where he was stationed on the date
of the incident. He was there as part of the street narcotic
enforcement unit which would observe drug sale transac-
tions and arrest the individuals involved. (Plaintiff's tr. at
11.) He did not recall [***4] how many police officers
were involved in this operation on the date in question.
Plaintiff knew that there was a program entitled the
"Clean Halls" program whereby a landlord would ex-
ecute an affidavit requesting that individuals be arrested
as trespassers if they are present in the [**629] building
but are not there as tenants or visitors. He did not know
whether, as part of that program, the landlord would have
to supply the police department with keys to the build-
ing, and did not know if the defendant was a member of
the "Clean Halls" program; however, he did know police
officers who did have keys to buildings. (Plaintiff's tr. at
21.) When the decision was made to arrest Mr. Apodaca,
the plaintiff radioed the information to his partner.
Plaintiff's partner "went down the street. He was in a
marked radio motor patrol car. Mr. Apodaca saw him
coming down the street. He fled inside the building.
[Plaintiff's] partner attempted to get in. And he got in. He
got in with [two other officers]." (Id. at 25.) Plaintiff de-
scribed the locked outer front door as being a wire mesh
steel door. (Id. at 29.) To gain entry to the building the
plaintiff "struck the window with [his] radio and then at
that point [***5] [he] severed [the] nerve on [his] hand."
(Id. at 30.) When asked if he actually injured his hand
while he was putting the radio through the window, the
plaintiff answered, "Yes." (Id. at 31.) Mr. Apodaca was
subsequently apprehended, tried and convicted of crimin-
al sale of a controlled substance. (Id. at 38-39.)
Plaintiff alleges two causes of action in his com-
plaint. The first cause of action seeks recovery based on
common-law negligence. The second cause of action
seeks recovery pursuant to General Municipal Law §
205-e. Briefly stated, plaintiff contends that the defend-
ant was negligent in two respects: the first is in allowing
criminal activity to be transacted on its premises, and the
second is in locking the outer vestibule door.
[*855] On October 23, 2001, Ms. Catherine Macri
testified at an examination before trial on behalf of the
defendant. A copy of her testimony is annexed to the
moving papers as exhibit E (hereinafter referred to as tr.).
Briefly stated, Ms. Macri testified that she is the presid-
ent of the defendant corporation. (Tr. at 7.) She is also
employed by Cosmopolitan Property Management, Inc.,
as its president. Cosmopolitan [***6] is employed by
the defendant as its managing agent and was the man-
aging agent at the time the plaintiff was injured. (Tr. at
6.)
The address 2220 Adams Place, Bronx, New York, is
Page 161
a multifamily residential building with 15 units, 3 on
each floor. (Tr. at 11.)
In 1996, Ms. Macri enrolled this building in the po-
lice department's "Clean Halls" program because the
block where the building is located was experiencing "a
lot of drug activity." (Tr. at 13.) The program requires
that the police department be given an affidavit of enroll-
ment, keys to the building, and a list of tenants, every
three months. "In return, the police department is sup-
posed to watch the building for you. Make their rounds,
arrest anyone who's loitering in front of the building,
who does not belong there, who cannot prove that they
belong in the building." (Tr. at 13-14.)
A tenant named Lisa Cosme resided in unit E3, on
the fifth floor, at the time the plaintiff was injured. She
had resided in the building since 1994. While Ms. Macri
did not receive any complaints from tenants or the police
regarding Ms. Cosme, the superintendent of the building
told her that Ms. Cosme's brother had been released from
jail, and as [***7] a result thereof, "there was drug
activity and people hanging out in front of the building."
(Tr. at 16.) Ms. Macri contacted the police and gave them
all the information which was available to her. She also
telephoned Ms. Cosme and informed her that the super-
intendent had advised her that Ms. Cosme's brother had
been released from prison and that there was drug activ-
ity "going on" in front of the building, "and perhaps that
[**630] was her brother." (Id.) Ms. Macri asked Ms.
Cosme not to stay in front of the building. Ms. Cosme re-
sponded that her brother was leaving and that she would
talk to him about it. (Tr. at 17.)
Ms. Macri testified about why the outer door was
locked on the night of the incident in which the plaintiff
sustained his injuries. She stated that the tenants agreed
to have the outer door locked after 10:00 p.m. to avoid
loitering and drug sales occurring between the outer and
inner doors of the building [*856] entrance. Tenants
were able to exit the building without a key but no one
could enter the inner vestibule without a key. (Tr. at 23.)
The key to the inner door also opened the outer door. (Tr.
at 25.)
With respect to plaintiff's first cause of action for
common-law negligence, plaintiff [***8] contends that
the defendant created a dangerous condition, had actual
notice of the condition, and failed to remedy it, when de-
fendant did not move to evict Ms. Cosme from her apart-
ment after Ms. Cosme's brother was released from prison
and began "hanging out" in front of the building. Plaintiff
further contends that defendant's locking of the outer
vestibule door constitutes negligence per se in that it con-
stitutes a violation of Multiple Dwelling Law § 50-a.
Consideration of defendant's statutory violation will be
discussed infra in this opinion.

[1] It is plaintiff's contention that "defendant's failure
to take any action against the tenant . . . who was housing
a known drug offender, other than a phone call to the po-
lice, could be construed by a reasonable person as a neg-
ligent act." (Affirmation in opposition ¶ 20.) Defendant's
actions cannot, however, be considered as mere acquies-
cence in that: the police were contacted; Ms. Cosme was
contacted; the building was enrolled in the "Clean Halls"
program; the outer vestibule door was locked; and any
and all information of which Ms. Macri was possessed
was turned over to the police department. [***9] Under
the circumstances, the actions undertaken by the defend-
ant cannot reasonably be construed as negligence. (See
People v. Campbell, 45 Misc. 2d 201, 203, 256 N.Y.S.2d
467 [1965].)
Plaintiff contends further that Real Property Law,
article 7, § 231, which provides a landlord with the
means to evict a tenant based on drug activity, should
have been utilized.
[2] Consideration of plaintiff's contention, that the
defendant's failure to evict Ms. Cosme is a negligent act,
requires speculation that had the defendant attempted to
evict Ms. Cosme the proceedings would have terminated
in the defendant's favor and that the proceedings would
have been completed before this incident occurred. The
speculative nature of this argument is reflected in the af-
firmation in opposition (¶ 20), wherein counsel argues
that "[h]ad the defendant herein taken advantage of this
statute, it is possible that the occurrence which led to Of-
ficer Kivlehan's injury would never have occurred." As
such, it does not provide an appropriate basis on which to
make a finding of negligence. [HN1] "In order to suc-
ceed, a cause of action [*857] must be based on more
than speculation." (Smith v. Wisch, 77 A.D.2d 619, 619,
430 N.Y.S.2d 115 [1980]]; [***10] see Island Associ-
ated Coop v. Hartmann, 118 A.D.2d 830, 500 N.Y.S.2d
315 [1986]; see also Silva v. 81st St. & Ave. A Corp., 169
A.D.2d 402, 564 N.Y.S.2d 326 [1991].) Moreover,
"[c]onjecture alone does not suffice to defeat a summary
judgment motion." (Rogan v. Giannotto, 151 A.D.2d
655, 656, 542 N.Y.S.2d 716 [1989].)
[3] Further, [HN2] a "common-law negligence cause
of action cannot be predicated upon [the] alleged negli-
gence that created the [**631] need for [the plaintiff's] .
. . services." (Rogan, supra at 656 ) In Rogan, the
plaintiff firefighters alleged a cause of action for com-
mon-law negligence as a consequence of the landlord's
failure to maintain operable smoke detectors. The
plaintiffs were injured "as they attempted to climb a
scuttle ladder which led to the roof" of a building which
was adjacent to the building that was burning. (Id.) The
Appellate Division, Second Department, reversed the Su-
preme Court's denial of summary judgment, and granted
Page 162
the landlord's application to dismiss the complaint and all
cross claims.
In Zanghi v. Niagara Frontier Transp. Comn. (85
N.Y.2d 423, 436, 649 N.E.2d 1167, 626 N.Y.S.2d 23
[1995]), the Court of Appeals restated its holding in
Cooper v. City of New York (81 NY2d 584, 619 N.E.2d
369, 601 N.Y.S.2d 432 [1993]) [***11] with respect to
the application of the firefighter's rule to a cause of ac-
tion in common-law negligence. [HN3] Pursuant to the
firefighter's rule as set forth in Cooper (supra), , "police
[officers] may not recover in common-law negligence for
line-of-duty injuries resulting from risks associated with
the particular dangers inherent in that type of employ-
ment . . . [The scope of the bar to recovery, the High
Court concluded, is that] the firefighter rule precludes a
police officer . . . from recovering in tort when the per-
formance of his . . . duties increased the risk of the injury
happening, and did not merely furnish the occasion for
the injury." (Zanghi at 436.) The Court in Zanghi (supra
at 439) further noted that "[c]ontinued application of the
bar is presently grounded on the public policy against
awarding damages to . . . police for hazards 'that create a
need for their services' and which they are hired, spe-
cially trained and compensated to confront."
[HN4] The "determinative factor," the Court noted,
in applying the firefighter rule's bar is "whether the in-
jury sustained is related to the particular dangers which
police officers . . . are expected to assume as part [***12]
of their duties . . . [The] necessary connection is present
where the performance of the police officer's . . . duties
increased the risk of the injury happening, and did not
merely furnish the occasion for the injury. In other
words, where [*858] some act taken in furtherance of a
specific police . . . function exposed the officer to a
heightened risk of sustaining the particular injury, he or
she may not recover damages for common-law negli-
gence." (Id. at 439.)
In the matter at bar, the plaintiff contends that the
defendant's common-law negligence is based on its fail-
ure to remove the drug dealers from the premises. It was
the presence of the drug dealers, though, that created the
need for the plaintiff's presence. In addition, during the
apprehension of the drug dealers, it was exigent circum-
stances created by the need to assist the officers who
were engaged in apprehending the perpetrators that led to
the plaintiff sustaining his injuries. Plaintiff's perform-
ance of his duties exposed him to "the heightened risk"
of his sustaining his injuries. Accordingly, plaintiff's
common-law negligence claim fails in this regard as
well.
In Kazanoff v. United States of Am. (945 F.2d 32 [2d
Cir 1991]), [***13] the Court of Appeals for the
Second Circuit in New York had occasion to consider the

propriety of summary judgment where a tenant was
murdered in her apartment by two nonresident assailants.
The men had gained entry into the building when the
postal employee exited the lobby through a locked door.
The men just walked through when the employee left.
The court affirmed a finding of summary judgment on
behalf of the defendant United States of America. In per-
tinent part, the court noted that [HN5] under New York
law, the [**632] plaintiff may establish negligence by
showing: "(1) the existence of a duty on defendant's part
as to the plaintiff; (2) a breach of that duty; and (3) injury
suffered by the plaintiff as a result of that breach. (Afkins
v. Glens Falls City Sch. Dist. 53 N.Y.2d 325, 333, 424
N.E.2d 531, 441 N.Y.S.2d 644.)" (Kazanoff, supra at 35.)
The concept of duty and its application, the Kazan-
off court noted, was set forth by the New York Court of
Appeals in De Angelis v. Lutheran Med. Ctr. (58 N.Y.2d
1053, 1055, 449 N.E.2d 406, 462 N.Y.S.2d 626 [1983])
as follows:
[HN6] "Duty is essentially a legal term
by which we express our conclusion that
there can be liability . . . It tells [***14]
us whether the risk to which one person
exposes another is within the protection of
the law. In fixing the bounds of that duty,
not only logic and science, but policy play
an important role . . .
"A line must be drawn between the
competing policy considerations of
providing a remedy to everyone who is in-
jured and of extending exposure [*859]
to tort liability almost without limit. It is
always tempting, especially when sym-
metry and sympathy would so seem to be
best served, to impose new duties, and,
concomitantly, liabilities, regardless of the
economic and social burden. But, absent
legislative intervention, the fixing of the
'orbit' of duty, as here, in the end is the re-
sponsibility of the courts . . . ." (See also
Kazanoff, supra [citations omitted].)
The police department knew that on August 24,
1999, a drug enforcement operation was taking place in
front of 2220 Adams Place and should have anticipated
that its officers might need an entry key. If the defendant
owed a duty to the plaintiff, it was discharged when keys
to the outer door were given to his employer for his use.
Plaintiff's second cause of action seeks recovery pur-
suant to General Municipal Law § 205-e [***15] .
[HN7] To assert this cause of action the plaintiff "must
Page 163
identify a statute or ordinance with which the defendant
failed to comply and must, in addition, set forth facts
from which it may be inferred that the defendant's negli-
gence directly or indirectly caused harm to the police of-
ficer." (Aversa v. New York City Hous. Auth., 233 A.D.2d
217, 218, 650 N.Y.S.2d 117 [1st Dept 1996] [citation
omitted]; see also Florio v. City of New York, 226 A.D.2d
148, 640 N.Y.S.2d 92 [1996].)
General Municipal Law § 205-e (1), in pertinent
part, provides that an injured police officer has a right of
action if his injury:
[HN8] "occurs directly or indirectly as a
result of any neglect, omission, willful or
culpable negligence of any person . . . in
failing to comply with the requirements of
any of the statutes, [or] ordinances . . . of .
. . city governments . . . [T]he person . . .
guilty of said neglect, omission, willful or
culpable negligence at the time of such in-
jury . . . shall be liable to pay [such] of-
ficer . . . a sum of money . . . . "
Said section further provides that the right to recov-
ery exists,
"regardless of whether the injury . . . is
caused by the violation of a provision
which [***16] codifies a common-law
duty and regardless of whether the injury .
. . is caused by the violation of a provision
prohibiting activities or conditions which
increase the dangers inherent in the work
of any officer . . . ." (General Municipal
Law § 205-e [3].)
Plaintiff contends that his statutory right of recovery
is based on the defendant's violation of Administrative
Code of the City of New York §§ 27-127 [*860] (main-
tenance requirements), 27-128 (owner responsibility),
27-357 (exit requirements: establishes certain exit re-
quirements for [**633] different types of buildings), 27-
361 (arrangements: exits shall be clearly visible, access-
ible and unobstructed), 27-371 (doors: requirements for
fireproofing and measurements for doors in certain types
of buildings), 27-2005 (duties of owner: multiple dwell-
ing to be kept in good repair), 27-2007 (certain specific
duties of tenants and others), and Multiple Dwelling Law
§ 50-a.
Multiple Dwelling Law § 50-a, in pertinent part,
provides as follows:

[HN9] "1. Every entrance from the
street . . . to a class A multiple dwelling . .
. except an entrance [***17] leading to
the main entrance hall or lobby which
main entrance hall or lobby is equipped
with one or more automatic self-locking
doors, shall be equipped with automatic
self-closing and self-locking doors and
such doors shall be locked at all times ex-
cept when an attendant shall actually be
on duty . . .
"2. Every class A multiple dwelling . .
. shall also be equipped with an intercom-
munications system. Such intercommu-
nication system shall be located at an
automatic self-locking door giving public
access to the main entrance hall or lobby
of said multiple dwelling and shall consist
of a device or devices for voice commu-
nication between the occupant of each
apartment and a person outside said door
to the main entrance hall or lobby and to
permit such apartment occupant to release
the locking mechanism of said door from
the apartment." (Emphasis supplied.)
While the above sections are alleged to form the
basis of plaintiff's claim pursuant to General Municipal
Law § 205-e, it appears from a review of the papers sub-
mitted that only Multiple Dwelling Law § 50-a is the one
upon which the plaintiff relies.
Plaintiff contends [***18] that he was prevented
from using the intercom system to gain entry into the
building because the outer door was locked, and that the
locking of the outer door was in violation of the forego-
ing highlighted portion of Multiple Dwelling Law § 50-a.
Moreover, plaintiff contends that this locked front door
proximately caused plaintiff's injuries in that, as a con-
sequence of his having to break the glass to gain entry
into the inner vestibule, the plaintiff sustained personal
injuries. [*861] Plaintiff further contends that defend-
ant's violation of Multiple Dwelling Law § 50-a, by lock-
ing the outer vestibule door, constitutes negligence per
se.
In furtherance of his position, plaintiff cites Ragona
v. Hamilton Hall Realty (251 A.D.2d 391, 674 N.Y.S.2d
113 [1998]). In Ragona, the plaintiff alleged that she was
assaulted in her building lobby because the perpetrator
gained access thereto as a result of a broken inner lobby
door. The Appellate Division, Second Department, modi-
fied the Queens County Supreme Court order and found
Page 164
that plaintiff failed to establish notice of prior criminal
activity on the premises so as to put the defendant land-
lord on notice to take minimal security [***19] meas-
ures. The Court, however, upheld Supreme Court's denial
of defendant's motion for summary judgment on the is-
sue of whether a statutory violation occurred. In pertinent
part the Court noted that "[t]he defendant [failed to offer
a] reason to cause [the] Court to deviate from the gener-
ally-accepted principle that the violation of a statute con-
stitutes negligence per se, and the violation of an ordin-
ance constitutes some evidence of negligence." (Id. at
392.)
In Elliott v. City of New York (95 N.Y.2d 730, 734,
747 N.E.2d 760, 724 N.Y.S.2d 397 [2001])), the Court of
Appeals noted that [HN10] "[a]s a rule, violation of a
State statute that imposes a specific duty constitutes neg-
ligence per se, or may even create absolute liability . . .
By contrast, violation [**634] of a municipal ordinance
constitutes only evidence of negligence." (Citations
omitted.)
In the case at bar it is contended that Multiple
Dwelling Law § 50-a was violated by the defendant's
placing of a lock on the outer vestibule door. Considera-
tion of the foregoing language by the Court of Appeals in
Elliott (supra) leads to the conclusion that it is a specific
duty, imposed by statutory mandate, [***20] which
must be violated before negligence may be established.
[HN11] The statutory language of Multiple Dwelling
Law § 50-a, however, neither mandates a locked outer
vestibule door nor prohibits it. The language of that sec-
tion merely states that public access is to be given to the
main entrance or lobby.
[4] It is not disputed that the tenants of the building
had a key to unlock the outer door. It is also not disputed
that it was the tenants of the building who agreed to, and
in fact insisted upon, the locking of the outer door so as
to better insure their safety in the building. (Tr. at 24.)
Under these circumstances, it would be repugnant to in-
terpret Multiple Dwelling Law § 50-a in a manner that
gives public access to the premises a higher priority over
safety considerations of the inhabitants of the [*862]
building. In fact, to render a determination, as urged by
the plaintiff, that the landlord owed the plaintiff a duty,
under statute, to keep the outer door unlocked, would
result in a rendition of that interpretation.
[HN12] The gist of the section is to provide access
to the intercom system for the convenience of the tenants
of the building so that they may, from the [***21] safety
of their residence, determine whether or not they wish to
allow a visitor into the building. Here, it was the tenants
themselves who, it is not disputed, made a determination
that their safety was better served by not allowing public
access to the inner door, next to the intercom system,
 Page 165

after 10:00 p.m. (Tr. at 24.) Ms. Macri testified that the find that the locking of the outer door was specifically
tenants would make other arrangements with their visit- prohibited by Multiple Dwelling Law § 50-a.
ors if they were expecting company after 10:00 p.m. (Tr.
[*863] [**635] The matter at bar presents an even
at 23.) The court takes judicial notice of the fact that nor-
more compelling [***23] reason to find that there was
mal package and mail delivery hours have long expired
no violation of Multiple Dwelling Law § 50-a. The
prior to the time at which the outer door is locked. In ad-
plaintiff has failed to refute the defendant's contention
dition, the defendant's policy at the time was that if the
that the police department was given keys to the build-
superintendent saw that drug activity was going on out-
ing. The plaintiff testified at his deposition that he did
side of the building and if the individuals involved were
not know how the other officers gained entry into the
making their way into the vestibule, then the superin-
building. (Deposition transcript of plaintiff, defendant's
tendent was to lock the outer door after 10:00 p.m. Under
exhibit D, at 29.) It is clear that they did not need to
these facts, it cannot be said that a statutory violation oc-
break the glass of the outer door to gain entry to the
curred.
premises because the plaintiff was injured when he had
As aforesaid, the purpose of the statute is to afford a to do so. The failure of the police department to distrib-
measure of protection to the tenants of a residential ute keys to officers who may need access to the property
building. Case research has failed to reveal any decision during their tour of duty cannot and should not be shifted
which has determined that a locked [***22] outer door to the defendant herein.
is prohibited by statute. One case determined that a
Moreover, this is not a situation where the landlord
locked outer door is not required. In Robinson v. New
created a condition which directly caused injury to the
York City Hous. Auth. (150 A.D.2d 208, 540 N.Y.S.2d 811
plaintiff, like a pothole. The plaintiff was injured in the
[1989]), the plaintiff contended that the landlord violated
performance of the duties of his office, which duties, by
Multiple Dwelling Law § 50-a by failing to have a lock
their very nature, carry the heightened risk of injury
on the outer door of the lobby. There was, however, an
when exigent circumstances are present.
intercom by an inner locked lobby door. The Appellate
Division, First Department, determined that there was no [HN13] "Summary judgment is appropriate when,
language in Multiple Dwelling Law § 50-a which man- after drawing all reasonable inferences in favor of the
dated that the landlord lock the outer vestibule door party against whom summary [***24] judgment is
which leads from the street to an inside intercom. The sought, no reasonable trier of fact could find in favor of
Court, in dicta, stated that "it would be illogical to re- the non-moving party." (Kazanoff, supra at 35.)
quire a locked outer door under these circumstances,
In the matter at bar the plaintiff has failed to raise a
since such a locked door would prevent visitors and res-
question of fact as to warrant denial of the motion for
idents, who did not have their keys with them, from
summary judgment on both causes of action.
reaching the intercom." Id. at 209.) While the Court
found that a locked outer door would be illogical under Accordingly, the application is granted in its entirety.
the circumstances of the case before it, the Court did not

51 of 55 DOCUMENTS

[*1] Bijoux Altamirano, Plaintiff, v. 343 East 8th Street Associates LLC Fotah Re-
alty Corp.; Jesse A. Evans, Inc. and Jesse A. Evans, individually, and in his capacity
as a principal of Jesse A. Evans, Inc., Defendants.

Index No. 110988

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2003 NY Slip Op 51718U; 2 Misc. 3d 1006A; 784 N.Y.S.2d 918; 2003 N.Y. Misc. LEXIS
1780

September 26, 2003, Decided


NOTICE: THIS OPINION IS UNCORRECTED
AND WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.
DISPOSITION: Defendants' motion for summary
judgment denied.
CORE TERMS: apartment, summary judgment, tenant,
gate, door, entrance, assailant, street, issues of fact, in-
stallation, landlord, triable, security gates, Memorandum
of Law, exterior, foreseeable, inside, floor, lobby, locked,
matter of law, chain of causation, apartment building, ex-
pert testimony, unforeseeable, proximately, precautions,
key-turn, equipped, intruder
HEADNOTES
[**1006A] [***918] Negligence--Maintenance of
Premises.
JUDGES: HON. WALTER B. TOLUB, J.S.C.
OPINION BY: WALTER B. TOLUB
OPINION
WALTER B. TOLUB, J.
In this negligence action Defendants 343 East 8th
Street Associates LLC and Fotah Realty Corporation
move for summary judgment pursuant to CPLR §
3212(a). Defendants claim they are entitled to summary
judgment because: 1) they owed no duty of care to
Plaintiff, (2) they did not have actual or constructive no-
tice of an alleged dangerous condition, (3) as they had no
authority to control Plaintiff's assailant, who was her in-
vited guest, their acts or omissions were not the proxim-
ate cause of Plaintiff's injuries, (4) the acts of Plaintiff's
invited guest severed the chain of causation required for
a finding of negligence, (5) they complied with the New
York Administrative Code Requirements regarding se-
curity, and (6) the provisions of section 50(a)(1) of the
New York Multiple Dwelling Law do not apply to the
building in question.
For the reasons stated herein, the court denies de-
fendants' motion for summary judgment.
Facts In March, 2001 Plaintiff Bijoux Altamirano
(hereinafter "plaintiff") rented Apartment B (hereinafter
"Apartment B") at 343 East 8th Street (hereinafter "the
building"), New York, NY. 343 East 8th Street Associates
LLP (hereinafter "343 Associates"), of which Jane
Holzer is the sole shareholder, owns the building. Fotah
Realty Corporation (hereinafter "Fotah Realty"), of
which Jane Holzer is the sole shareholder and officer,
Page 166
maintains the building. Fotah Realty employs Anthony
Pagan, who is the manager and superintendent of the 343
East 8th Street property. Jesse Evans is the real estate
broker who assisted plaintiff in renting her apartment; he
is not party to this motion.
The building at 343 East 8th Street contains eight
residential apartments and two commercial store fronts.
Apartment B is a small studio apartment, approximately
eighteen by thirteen feet, located on the ground floor; it
has its own, private entrance that opens directly onto the
street. This entrance is completely separate from the
building's main entrance which provides access for all of
the other apartments.
In November, 1999, Apartment B was converted
from a storage to residential space. Anthony Pagan over-
saw the renovation of the apartment, which included the
installation of iron security gates over each of the apart-
ment's windows and around its door in November, 1999.
It is this original iron security gate surrounding
Apartment B's door that is at issue in this case. This ori-
ginal gate, which was in place at the time plaintiff rented
Apartment B but which has [*2] since been replaced,
had a round lock that was keyed on both sides. Although
the door leading directly into the apartment was self-
locking, the gate was not. The gate could not be opened
from the outside, nor the inside, without using a key. The
gate would not close unless it had been locked, either
from the outside or the inside (Altamirano's Affidavit, p.
141).
Accordingly, in order to enter Apartment B, the ten-
ant had to first unlock the exterior security gate, enter
through it, and then re-lock it. The tenant then had to un-
lock the apartment's door before entering the apartment.
In order to leave Apartment B, the tenant had to first exit
through the door and lock it, then unlock the exterior se-
curity gate, exit through it, and re-lock it before proceed-
ing onward.
This gate was purchased by Anthony Pagan and he
was responsible for its installation (Pagan's Affidavit, p.
22-23). Neither he, nor anyone else, obtained any permits
for the renovation work performed at Apartment B; no
governmental agency inspected the apartment before it
was rented (Id., p. 14).
In March 2001 defendant Jesse Evans, a real estate
broker, showed plaintiff Apartment B (Altamirano's Affi-
davit, p. 13); plaintiff moved in shortly thereafter.
On or about March 23, 2001 plaintiff met Sean
Washington (hereinafter "Washington"), an old friend, on
the street in the East Village (Altamirano's Affidavit, p.
126). Plaintiff had known Washington for four years (Id.,

p. 108). She told Washington where she lived (Id., p.
125) and invited him to "stop by," which he did later that
day (Id., p. 114). He stayed for approximately one hour
and then left (Id., p. 127).
After being repeatedly called by Washington (Id., p.
135), plaintiff agreed he could visit again. On March 24,
2001, plaintiff let Washington into her apartment and
closed and locked the exterior security gate from the in-
side (Id., p. 142). After half an hour (Id., p. 142), plaintiff
and Washington left the apartment to go food shopping.
They returned to the apartment and plaintiff ate what she
had purchased (Id., p. 150). Thereafter, when plaintiff
asked Washington to leave, he took her by the throat with
a razor, told her to remove her pants, and assaulted and
raped her (Defendants' Exhibit F). Washington then slit
plaintiff's throat and left. Plaintiff is suing defendants for
damages arising out of the medical and emotional injur-
ies she sustained as a result of the attack.
Discussion
Plaintiff contends that the defendant's negligent in-
stallation of the key-turn gate was a substantial factor in
proximately causing her injuries because she was preven-
ted from escaping her apartment during the rape and as-
sault. Plaintiff claims that although she wanted to escape
she did not try to because her attempt would have been
futile given that the outside security gate was locked and
the key required to open it was in her pants, out of her
reach during the attack (Complaint, p. 5).
Plaintiff further contends that defendants' installa-
tion of a key-turn gate is compelling evidence of negli-
gence because it violated New York Multiple Dwelling
Law § 50-a(1) and New York Administrative Code § 27-
371(j)(2)(b) (Plaintiff's Memorandum of Law, p. 8).New
York Multiple Dwelling Law § 50-a(1) specifies (in per-
tinent part) that,
"every entrance from the street, passageway, court,
yard, cellar, or similar entrance to a class A multiple
dwelling erected or converted after January first, nine-
teen hundred sixty-eight, except an entrance leading to
the main entrance hall or lobby which main entrance hall
or lobby is equipped with one or more automatic self-
locking doors, shall be equipped with automatic self-
closing and [*3] self-locking doors and such doors shall
be locked at all times except when an attendant shall ac-
tually be on duty."
New York Administrative Code § 27-371(j)(2)(b)
specifies that, "doors to dwelling units shall be equipped
with a heavy duty latch set and a heavy duty dead bolt
operable by a key from the outside and a thumb-turn
from the inside."
Plaintiff submitted expert testimony from a licensed
Page 167
architect stating that by their installation of the key-turn
gate, defendants had violated both of these provisions
(Korves' Affidavit, p. 1).
In opposition, defendants claim that their installation
of the subject exterior gate was not negligent. Defendants
contend that by installing the exterior security gate at is-
sue, they were actually taking the minimal precautions
required to protect their tenant from foreseeable harm
(Defendants' Memorandum of Law, p. 7). They claim
that the gate was not a "dangerous condition" and even if
it were so considered, they had no notice of it because
plaintiff never complained about it (Id., p. 8). Further-
more, even if the court deems that actual or constructive
notice of the condition existed, the intervening, unfore-
seeable acts of Washington severed the chain of causa-
tion and preclude defendants' from liability. Defendants
claim plaintiff did not show that they either knew or had
reason to know "from past experience 'that there is a like-
lihood of conduct on the part of third-persons ... which is
likely to endanger the safety of the visitor" (Defendants'
Memorandum of Law, p. 4, quoting Nallan v. Helmsley-
Spear, Inc., 50 N.Y.S.2d 507, 429 N.Y.2d 606, 613, 407
N.E.2d 451 ). Defendants claim that since there was no
criminal activity at the building in question, the assault
upon plaintiff was unforeseeable (Defendants' Memor-
andum of Law, p. 5, citing M.D. v. Pasadena Realty Co.,
300 A.D.2d 235, 753 N.Y.S.2d 457 (1st Dept. 2002)).
Most importantly for our purposes, however, de-
fendants claim that they did not violate New York Ad-
ministrative Code § 27-371(j)(2)(b) and that New York
Multiple Dwelling Law § 50-a(1) does not apply to the
building in question (Defendants' Memorandum of Law,
p. 18). Defendants have submitted expert testimony that
supports this claim and that directly contradicts plaintiff's
expert witness (Miele's Affidavit, p. 1-2). Defendants
then contend that there are no issues of triable fact and
that as a matter of law, summary judgment must be awar-
ded to them.
It is axiomatic that on a motion for summary judg-
ment the court's role is to find issues, but not resolve
them. To prevail a movant must present evidence suffi-
cient to demonstrate the absence of any triable issues of
fact thereby demonstrating entitlement to judgment as a
matter of law (Sillman v. Twentieth Century-Fox Film
Corp., 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498
[1957]; see generally, Barr, Altman, Lipshie and Gerst-
man; New York Civil Practice Before Trial [James Pub-
lishing 2001-2002] § 37:91-92). Once this showing has
been made, the opposing party must produce admissible
evidentiary proof establishing the existence of material
issues of fact. Mere conclusions, expressions of hope or
unsubstantiated allegations are insufficient for this pur-
pose (Zuckerman v. City of New York, 49 N.Y.2d 557, 404
 Page 168

N.E.2d 718, 427 N.Y.S.2d 595 [1980]). sue here.

A violation of the New York Administrative Code is
The court would point defendants to the relevant state-
some evidence of negligence, and a violation of the New
ment from Burgos, which is "in order to withstand sum-
York Multiple Dwelling Law, a statute, is negligence per
mary judgment, a plaintiff need only raise a triable issue
se. Here, both parties have submitted conflicting expert
of fact regarding whether defendant's conduct proxim-
testimony as to whether defendants violated one or both
ately caused plaintiff's injuries" (Id., at 550).
of these laws. This court cannot imagine a clearer ex-
ample of a triable "issue of fact." Summary judgment is
This case is not dissimilar to Fontanez v. New York City
therefore inappropriate.
Housing Authority, 224 A.D.2d 372, 638 N.Y.S.2d 77 (1st
Dept. 1996). There, the plaintiff entered her apartment
Before concluding, however, the court would address de-
building's lobby and noticed a young man loitering.
fendants' interpretation of a leading New York State
When the man let two other men into the lobby, all three
premises security case. Defendants, in making their nu-
unknown to the plaintiff, she became suspicious and
merous arguments, relied [*4] upon Burgos v. Aqueduct
entered the stairwell instead of the elevator. She ran up
Realty Corp. et. al. (92 N.Y.2d 544, 548, 706 N.E.2d
the stairs to the third floor, where her friend had an apart-
1163, 684 N.Y.S.2d 139 [1998]) (holding that a plaintiff
ment. The plaintiff was unable to enter the third floor
who was attacked in her apartment building and who
landing, however, because the stairway door had no
sued a landlord for negligent failure to take minimal pre-
handle. When plaintiff turned to go up another floor, one
cautions to protect tenants from harm can withstand
of the men who had followed her hit her in the face with
summary judgment on proximate cause grounds by rais-
a revolver.
ing a triable issue of fact regarding whether landlord's
conduct proximately caused plaintiff's injuries, even
In Fontanez the First Department Appellate Division up-
when the assailant is unknown to plaintiff). In Burgos,
held the denial of the defendant Housing Authority's mo-
the New York Court of Appeals stated that, "landlords
tion for summary judgment. The court deemed summary
have a common-law duty to take minimal precautions to
judgment inappropriate because the plaintiff raised issues
protect tenants from foreseeable harm, including a third
of fact as to whether the missing door handle, which pre-
party's foreseeable criminal conduct." It continued:
vented plaintiff's escape, contributed to the criminal as-
sault on plaintiff and whether the [*5] occurrence was
"in premises security cases particularly, the necessary
reasonably foreseeable. As noted in the dissent, summary
causal link between a landlord's culpable failure to
judgment was denied even though "no evidence [was]
provide adequate security and a tenant's injuries result-
presented whatsoever to indicate how the first assailant
ing from a criminal attack in the building can be estab-
gained access to the building" (Id., p. 374). The court
lished only if the assailant gained access to the premises
was not concerned with how the assailant gained entry to
through a negligently maintained entrance. Since even a
the apartment building, the court was concerned with
fully secured entrance would not keep out another ten-
whether issues of fact existed as to whether the Housing
ant, or someone allowed into the building by another
Authority's inadequate maintenance was a substantial
tenant, plaintiff can recover only if the assailant was an
contribution to the plaintiff's injuries.
intruder" (Id, at 550-551).
Defendants claim that consequently, as a matter of Here, as in Fontanez and Burgos, there are triable issues
law, they cannot be held liable for plaintiff's injuries be- of fact as to whether defendants' negligence contributed
cause her assailant was not an intruder. Defendants claim to plaintiff's injuries. Summary judgment cannot be
the intervening, unforeseeable acts of Washington sever awarded.
the chain of causation required for a finding of negli-
Accordingly, it is
gence and that they should therefore not be held liable
for plaintiff's injuries. By relying on Burgos, defendants ORDERED that pursuant to CPLR § 3212 defend-
cite a valid standard but apply it to the wrong scenario. ants' motion for summary judgment is denied.
In Burgos, the Court of Appeals held that a landlord has a
Dated: September 26, 2003
(limited) duty to protect tenants from intruders. The
Court of Appeals did not hold that a landlord might pre- HON. WALTER B. TOLUB, J.S.C.
vent a tenant from escaping an assailant, which is the is-

52 of 55 DOCUMENTS
 Page 169

Cited
As of: Sep 10, 2008

East 145 Co., Appellant, v. Avraham Benayoun et al., Respondents, et al., Respond-
ents.

# 01-207

SUPREME COURT OF NEW YORK, APPELLATE TERM, FIRST DEPART-

MENT

190 Misc. 2d 164; 736 N.Y.S.2d 830; 2001 N.Y. Misc. LEXIS 915

November 1, 2001, Decided

PRIOR HISTORY: [***1] Appeal from an order of
the Civil Court of the City of New York, New York
County (Jerald R. Klein, J.), dated February 22, 2001, in-
sofar as it denied petitioner's cross motion for summary
judgment and to strike respondents' third affirmative de-
fense and first counterclaim in a holdover summary pro-
ceeding.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff landlord com-
menced a holdover proceeding against defendant tenants
for harboring a dog in violation of a "no pets" lease pro-
vision. The landlord cross-moved to strike the third af-
firmative defense and the first counterclaim, which were
related to the tenants' claims of retaliatory eviction, and
moved for summary judgment on the holdover petition.
The civil court (New York) denied the landlord's mo-
tions. The landlord appealed.
OVERVIEW: The tenants conceded that they harbored
a dog in violation of the lease. The appellate court dis-
cerned no factual issue as to the remaining defense of re-
taliatory eviction to preclude summary judgment on the
petition. There was no allegation of any prior complaint
made to governmental authorities concerning conditions
in the apartment or any evidence of building code viola-
tions. The mere settlement of the tenants' negligence
lawsuit, commenced after the tenants' son was injured
when a fixture fell in the apartment, was not an adequate
basis for the retaliatory eviction claim. Similarly, the
denial of the landlord's permissible applications for high
income rent decontrol was not evidence of retaliatory
motive in the holdover proceeding. Therefore, the land-
lord was entitled to have the third affirmative defense
and the first counterclaim stricken and to summary judg-
ment on the holdover petition. However, it was appropri-
ate to stay the issuance of the warrant for 10 days so that
the tenants could cure the breach. A remand to the civil
court was needed for further proceedings on the land-
lord's claims for use and occupancy and attorneys' fees as
the prevailing party.
OUTCOME: The appellate court (1) modified the order
by granting the cross-motion to strike the third affirmat-
ive defense and the first counterclaim and by granting the
landlord summary judgment on the holdover petition, (2)
affirmed the order as modified, (3) stayed issuance of a
warrant, and (4) remanded the case to the civil court for
further proceedings on the landlord's claims for use and
occupancy and attorneys' fees.
CORE TERMS: landlord, tenant, retaliatory, eviction,
retaliation, lease, summary judgment, high income,
apartment, holdover, rent, modified, adequate basis, per-
sonal injury action, question of fact, commencement, set-
tlement, decontrol, lawsuit, fixture, motive
LexisNexis(R) Headnotes
Real Property Law > Landlord & Tenant > Landlord's
Remedies & Rights > Eviction Actions > General Over-
view
Real Property Law > Landlord & Tenant > Tenant's
Remedies & Rights > Termination & Retaliatory Evic-
tion
Torts > Procedure > Settlements > General Overview

[HN1] The mere settlement of a negligence lawsuit
against a landlord is not, in and of itself, an adequate
basis for a retaliatory eviction claim.
HEADNOTES
Landlord and Tenant - Summary Proceedings - Re-
taliatory Eviction
The mere settlement of a negligence lawsuit, com-
menced as a consequence of injuries sustained by re-
spondent tenants' son when a fixture apparently fell in
the apartment, is not, in and of itself, an adequate basis
for respondents' retaliatory eviction defense to petitioner
landlord's holdover proceeding. Nor is the Division of
Housing and Community Renewal's denial of petitioner's
permissible applications for high income rent decontrol
evidence of retaliatory motive.
COUNSEL: Borah, Goldstein, Altschuler, Schwartz &
Nahins, P. C., New York City (Jeffrey R. Metz of coun-
sel), for appellant.
Traub, Bonacquist & Fox, L. L. P., New York City (Fred-
erick J. Levy, Paul Traub and Peter G. Lavery of coun-
sel), for respondents.
JUDGES: PRESENT: HON. WILLIAM P. McCOOE,
J.P., HON. WILLIAM J. DAVIS, HON. LUCINDO
SUAREZ, Justices. Davis and Suarez, JJ., concur; Mc-
Cooe, J. P., dissents in part in a separate memorandum.
OPINION
[*165] [**831] PER CURIAM.
Order dated February 22, 2001 modified by granting
landlord's cross motion to strike the third affirmative de-
fense and first counterclaim, and by granting summary
judgment to landlord on the holdover petition; as modi-
fied, order affirmed, with $ 10 costs to landlord appel-
lant.
Tenants concede that they harbored a dog in viola-
tion of the "no pets" lease provision and that this [***2]
holdover proceeding was timely commenced under Ad-
ministrative Code of the City of New York § 27-2009.1.
We discern no factual issue as to the remaining defense
of retaliatory eviction which would preclude summary
judgment on the petition. There is no allegation of any
prior complaint made to governmental authorities con-
cerning conditions within the apartment or any record
evidence of building code violations (Real Property Law
§ 223-b). [HN1] The mere settlement of a negligence
lawsuit, commenced as a consequence of injuries sus-
tained by tenants' son when a fixture apparently fell in
the apartment, is not, in and of itself, an adequate basis
Page 170
for a retaliatory eviction claim (see, Weil v Kaplan, 175
Misc 2d 482 [App Term, 2d Dept]). Similarly, the Divi-
sion of Housing and Community Renewal's denial of
landlord's permissible applications for high income rent
decontrol is not evidence of retaliatory motive in this
proceeding.
Issuance of the warrant is stayed for 10 days after
service of a copy of this order with notice [***3] of
entry so that tenants may cure the breach of lease
(RPAPL 753 [4]).
The matter is remanded to the Civil Court for further
proceedings on landlord's claims for use and occupancy
and attorneys' fees as the prevailing party.
CONCUR BY: William P. McCooe (In Part)
DISSENT BY: William P. McCooe (In Part)
DISSENT
William P. McCooe, J. P. (Dissenting in part). I dis-
agree only with that part of the majority decision which
found as a matter of law that the commencement of this
eviction proceeding was not in retaliation for the tenant
having successfully prosecuted a personal injury action
against the landlord based upon a condition in the build-
ing. A question of fact is present which precludes sum-
mary judgment.
Real Property Law § 223-b (1) (b) entitled "Retali-
ation by landlord against tenant" states in relevant part
that a landlord shall not commence a proceeding to re-
cover real property in retaliation for actions taken in
good faith by a tenant to enforce rights under the lease or
law of the State of New York regulating residential
premises. The commencement of the personal injury ac-
tion against [***4] the landlord based upon a condition
in [*166] the subject building implicates a breach of the
lease and section 78 of the Multiple Dwelling Law.
Whether this eviction proceeding was brought in retali-
ation for commencing that action presents a question of
fact which cannot be summarily determined. Weil v Ka-
plan (175 Misc 2d 482 [App Term, 2d Dept]) is distin-
guishable since the statute does not apply to an owner-
occupied two-family house.
Since the statute speaks of actions or complaints by
the tenant, the filing of two petitions for high income rent
deregulation by the landlord are not within the statute. In
any event, by definition retaliation applies to actions pre-
viously taken by the tenant against the landlord.
The order should be modified to the extent of direct-
ing a trial on the specified issue only.
Davis and Suarez, JJ., concur; McCooe, J. P., dis-
 Page 171

sents in part in a separate memorandum.

53 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

[*1] Emilio Crespo Plaintiff, v. City of New York, Dormitory Authority of the State
of New York, The City University of New York, S & P Construction Management,
Inc., and TDX Construction Corporation, Defendants.

Index No. 23922/99

SUPREME COURT OF NEW YORK, BRONX COUNTY

2001 NY Slip Op 40516U; 2001 N.Y. Misc. LEXIS 744

September 25, 2001 Decided

NOTICE: [**1] THIS OPINION IS UNCORREC-
TED AND WILL NOT BE PUBLISHED IN THE OFFI-
CIAL REPORTS.
DISPOSITION: Plaintiffs motion for summary judg-
ment on its claim under Labor Law 240(1) granted.
The cross-motion of defendant City to dismiss the
complaint and all cross-claims against it granted.
The cross-motions seeking indemnity denied.
The cross-motion by TDX to compel discovery
granted to the extent of directing plaintiff to provide all
discovery responses not previously served on defendant.
DASNY's cross-motion granted only to the extent of
dismissing the claims against it for common law negli-
gence and for violation of Labor Law 200.
CORE TERMS: ladder, safety device, scaffold, sum-
mary judgment, proximate cause, indemnity, cross-mo-
tion, unsafe, upside down, misuse, wheels, issues of fact,
cross-claim, common law, general contractors, indemni-
fication, contractual, cross-moves, indemnify, discovery,
manager, flange, feet, top, contractor, removing, evident,
notice, rubber, pipe
COUNSEL: Richard Geller, Esq., Geller & Siegel, LLP,
Attorneys for Plaintiff Crespo, New York, New York.
David Heller, Esq., Harms, Della Jacono & Finnerman,
Attorneys for defendant City of New York, Elmsford,
New York.
Smith Mazure Director Wilkins Young Yagerman & Tar-
allo, Attorneys for defendants Dormitory Authority of the
State of New York and The City University of New York,
New York, New York.
Deirdre M. James, Esq., Conway, Farrell, Curtin &
[**2] Kelley, P.C., Attorneys for defendant S & P Con-
struction Management, Inc., New York, New York.
Brian T. Deveney, Esq., O'Connor, O'Connor, Hintz &
Deveney, LLP, Attorneys for defendant TDX Construc-
tion Corporation, Garden City, New York.
JUDGES: Hon. Paul A. Victor, Justice of the Supreme
Court.
OPINION BY: Paul A. Victor
OPINION
RELIEF REQUESTED
Plaintiff moves for an order granting him summary
judgment pursuant to CPLR 3212 on his claim under
Labor Law 240(1); defendant Dormitory Authority of the
State of New York (DASNY) cross-moves for summary
judgment dismissing plaintiffs Labor Law 200 and com-
mon law claims, and granting it conditional summary

judgment on its cross-claim against defendant TDX Con-
struction Management (TDX) for contractual indemnific-
ation; defendant TDX cross-moves for summary judg-
ment on its cross-claim and third-party complaint against
defendant S & P Construction Management Inc. (S & P)
for indemnification based on S & P's contractual obliga-
tion to indemnify DASNY and itself; defendant TDX (in
addition to its previous cross-motion) cross-moves to
compel plaintiff to provide discovery as demanded in its
notice for discovery and inspection; and [**3] defendant
[*2] City of New York cross-moves to dismiss the com-
plaint against it.
FACTS AND PROCEDURAL HISTORY
On February 22, 1999, plaintiff, an employee of de-
fendant S & P, was seriously injured when he fell from a
twenty-foot extension ladder, which had been placed on
top of a 5 foot "baker's" scaffold. At the time of the acci-
dent, plaintiff and his brother, also an employee of de-
fendant S & P, were painting a section of a chimney
which was located twenty four feet above ground in a
building which was then under construction. The struc-
ture was owned by defendant DASNY, with TDX acting
as construction manager.
James Callo, an employee of TDX, testified at a de-
position that he had observed S & P's employees using a
ladder placed on top of a scaffold, and that he had noti-
fied an officer of S & P that placing a ladder on a scaf-
fold is an unsafe practice.
Plaintiff contends that the foregoing facts warrant
judgment under Labor Law 240(1). In opposition, the de-
fendants maintain that there exist issues of fact concern-
ing the manner of the happening of the accident which
preclude summary judgment. Specifically, defendants
maintain that the various reports and EBT testimony
raise conflicting [**4] evidence as to whether the ladder
was placed with its rubber feet resting on top of the scaf-
fold, or whether the rubber feet were positioned against
the chimney flue. 1 In addition, defendants point to con-
flicting evidence as to whether the rubber [*3] wheels
on the scaffold were in a locked or unlocked position.
Lastly, the defendants note that plaintiffs fall was unwit-
nessed, although he was found on the ground by wit-
nesses moments after the accident.
1 Plaintiff states that the ladder was placed in
the correct position, i.e., with its feet on the scaf-
fold. Plaintiff's brother stated in an affidavit that
the ladder was placed "upside down" so as to get
a better grip on the scaffold. In addition, plaintiff
testified that the scaffold had no wheels, while his
brother maintained that the scaffold had wheels,
and that three of the four wheels did not lock in
place.
Page 172
Defendant DASNY states in its cross-motion that
TDX had general responsibility for safety practices at the
work site. DASNY contends that it is [**5] entitled to
contractual indemnification from TDX, based on its con-
tract with TDX which provided that TDX would hold
DASNY harmless from claims "arising out of or in con-
nection with negligent performance of the work under-
taken in the Project by the Construction Manager
[TDX]." In addition, DASNY argues that it is not subject
to liability under theories of common law negligence or
under Labor Law 200, as DASNY exercised no actual
authority or control over the work site or the activity
bringing about the injury, and had no notice of the unsafe
work practices.
Defendant TDX maintains, in its cross-motion, that
S & P is contractually obligated to indemnify both
DASNY and TDX. 2 The contract between DASNY and
S & P provides that S & P will indemnify the owner and
construction manager for losses "resulting from, arising
out of, or occurring in connection" with S & P's work. S
& P maintains, in opposition, that TDX is not entitled to
indemnity because issues of fact exist as to whether it
was negligent in failing to stop the unsafe work practices
(i.e., placing a ladder on top of a scaffold) of which it
was aware.
2 TDX originally interposed cross-claims
against S & P, which was a direct defendant in the
main action. Plaintiff has now discontinued its ac-
tion against S & P. The cross-claims are thus con-
verted to third party claims. In addition, TDX has
commenced a third party action against S & P. Is-
sue had not been joined in this action as of the
time of the making of the motion.
It should be noted that DASNY has not
moved for indemnity from S & P.
[**6] DISCUSSION
[*4] Plaintiff's Entitlement to Summary Judgment
Pursuant to Labor Law 240(1), i.e., "Two Wrongs Don't
Make A Right"
It is clear that an injury involving a gravity-related
accident within the purview of Labor Law 240(1) which
befalls a worker who is not provided with any safety
device whatsoever warrants judgment in favor of the
worker against an owner and contractor. "Plaintiff met
his initial burden of demonstrating his entitlement to
judgment as a matter of law by submitting proof estab-
lishing that his injuries were proximately caused by the
absence or inadequacy of safety devices affording him
proper protection from an elevation-related risk (see,
Cricks v. Niagara Mohawk Power Corp., A.D.2d
[decided Dec. 27, 2000], citing Raczka v. Nichter Util.

Constr. Co., 272 A.D.2d 874, 707 N.Y.S.2d 735)." ( Mat-
ter of Anderson v. Goord, N.Y.S.2d , 2001 WL
100290 [4th Dept. 2001].) Plaintiff has thus met his ini-
tial burden on the motion.
To the extent that defendant TDX argues that it hired
a safety manager to monitor safety related issues, it is
evident that the duty imposed by Labor Law 240(1) is
nondelegable, [**7] and thus defendant remains liable
to the plaintiff. "The duty is nondelegable and a violation
imposes absolute liability upon owners and general con-
tractors irrespective of whether they exercised supervi-
sion or control over the work...." ( Buckley v. Radovich,
211 A.D.2d 652, 621 N.Y.S.2d 638 [2d Dept. 1995].) The
delegation of authority to a third party might result in
that third party being liable to plaintiff, but it will not ex-
empt the general contractor from liability. McGurk v.
Turner Const. Co., 127 A.D.2d 526, 512 N.Y.S.2d 71 (1st
Dept. 1987).
Under Labor Law § 240(1), an injured worker, even
though unable to demonstrate the precise manner in
which the accident happened, may still be granted sum-
mary judgment if sufficient [*5] evidence is tendered to
demonstrate that the failure to provide a required safety
device was a contributing cause of the accident. ( Shee-
han v. Fordham University, 259 A.D.2d 328, 687
N.Y.S.2d 22 [1st Dept. 1999]; Reed v. State, 249 A.D.2d
719, 671 N.Y.S.2d 820 [3rd Dept. 1998]; Gambino v. Wil-
liam Crow Construction, 238 A.D.2d 190, 655 N.Y.S.2d
537 [1st Dept. 1997]); [**8] Saldana v. Saratoga Re-
alty, 235 A.D.2d 744, 652 N.Y.S.2d 374 [3rd Dept.
1997]). Here, the ladder was unsecured, and the alleged
misuse of the ladder (placing it "upside down") can not
under the circumstances presented be considered to be
the sole proximate cause of the accident. Similarly,
whether or not wheels on a scaffold were locked is im-
material, as the failure to lock the wheels can not be con-
sidered the sole proximate cause of the accident. ( Gar-
cia v. 1122 East 180th Street Corp., 250 A.D.2d 550, 675
N.Y.S.2d 2; Lawrence v. Forest City Ratner Companies,
701 N.Y.S.2d 428.) In essence, both safety devices
provided to the plaintiff - the scaffold and the ladder -
were inadequate for the job at hand, as a result of which
it is evident as a matter of law that plaintiff was not
provided with any sufficient or adequate safety device.
It is "well settled that the injured's contributory neg-
ligence is not a defense to a claim based on Labor Law §
240(1) and that the injured's culpability, if any, does not
operate to reduce the owner/contractor's liability for fail-
ing to provide adequate safety devices." ( Stolt v. Gener-
al Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650,
613 N.E.2d 556 [**9] [1993]). However, it has been
made abundantly clear that "section 240 does not give
absolution to the plaintiff when his injury has been
Page 173
caused, exclusively, as a result of his own willful or in-
tentional acts." (Emphasis supplied.) ( Tate v Clancy-
Cullen Storage Co. Inc., 171 A.D.2d 292, 296, 575
N.Y.S.2d 832 [1st Dept. 1991].) This kind of egregious
conduct has evolved into the legal "axiom" that liability
will not be imposed upon owners and contractors when
the worker's conduct is the "sole proximate cause" of the
occurrence. [*6] ( Weininger v Hagedorn & Co., 91
N.Y.2d 958, 672 N.Y.S.2d 840, 695 N.E.2d 709 [1998],
reargument denied, 92 N.Y.2d 875, 677 N.Y.S.2d 777
[1998].) But when the circumstances demonstrate that a
statutory violation was a contributing factor to a worker's
fall from a ladder or scaffold, the worker's comparative
negligence (as distinguished from intentional wrongdo-
ing) is factually and legally irrelevant, and should not be
used to defeat summary judgment on the pretext or spec-
ulation that the accident may have been caused "solely"
because of the culpable conduct of the worker. (See,
Kyle v. City of New York, 268 A.D.2d 192, 196, 707
N.Y.S.2d 445 [**10] [1st Dept. 2000].) Thus, the "sole
proximate cause" defense should be limited to the situ-
ation where a worker has been provided with "proper
protection," and the worker thereafter, through intention-
al misuse of the safety device, or via other egregious
misconduct, neutralizes the protections afforded by the
safety device. ( McMahon v. 42nd St. Development Pro-
ject, Inc., N.Y.S.2d , 2001 WL 575517, 2001 N.Y.
Slip Op. 21221 [N.Y.Sup., Victor, J., Jan 09, 2001].)
However, once plaintiff makes a prima facie showing
that he was subjected to one of the hazards covered by
Section 240, the burden shifts to the defendants to
provide evidentiary proof in admissible form (not specu-
lation) sufficient to establish that proper protection was
afforded but rendered ineffective as a result of intentional
or culpable conduct on the part of plaintiff.
It is evident that the defendants can not make such a
showing here, since the defendants, by providing two in-
adequate safety devices in essence provided no safety
device (i.e., no adequate safety device). To the extent that
the plaintiff may have engaged in any "misuse" of the
ladder by placing it "upside down," such [**11] "mis-
use" was not a deliberate failure to use a proper safety
device. The ladder was inadequate for the task at hand
because it was not long enough, and the unusual place-
ment of the ladder (if indeed the ladder was placed "up-
side down") was an effort by the plaintiff to secure the
[*7] ladder from movement when it was placed on the
baker scaffold. In other words, if the ladder was placed
"upside down," it was done in an effort to further the
safety of the plaintiff, who had not been provided with
proper safety devices in the first instance. Had he been
provided with an adequate safety device he would not
have needed to cobble together equipment in an unsafe
manner. Under these circumstances his actions amount to

no more than comparative negligence, which is irrelevant
in an absolute liability case predicated on a Labor Law
240(1) violation.
Cases Involving Falls From Ladders
It is not necessary, in order to impose liability under
Labor Law 240, for the jury to find that the fall was
caused by a fault or defect in the ladder itself. For ex-
ample, in Yu Xiu Deng v. A.J. Contracting Co., Inc. (255
A.D.2d 303, 680 N.Y.S.2d 223 [1st Dept. 1998]), the First
Department granted [**12] summary judgment in favor
of plaintiff under Labor Law 240(1) when the fall was
caused by a loss of balance, caused by the plaintiffs neg-
ligence in controlling the work materials, holding that:
Whether the ladder on which plaintiff
was working tipped as a result of plaintiff
losing her balance when she lost control
of the sheetrock she was handling, or, in-
deed, whether plaintiff fell off the ladder
without it having tipped at all, are not ma-
terial issues of fact. Plaintiff's negligence,
if any, is of no consequence ( Rocovich v
Consolidated Edison Co., 78 N.Y.2d 509,
513, 577 N.Y.S.2d 219, 583 N.E.2d 932).
Further, in this case, it is clear that the
ladder did not prevent plaintiff from fall-
ing and there is no dispute that no safety
devices, other than the ladder, were
provided (see, Gordon v. Eastern Ry. Sup-
ply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d
127, 626 N.E.2d 912; Guillory v Nautilus
Real Estate, 208 A.D.2d 336, 337-338,
624 N.Y.S.2d 110, appeal dismissed and lv
denied 86 N.Y.2d 881; Devlin v Sony
Corp., 237 A.D.2d 201, 655 N.Y.S.2d
762).
Similarly, in Dasilva v. A.J. Contracting Co. (262
A.D.2d 214, 694 N.Y.S.2d 353 [**13] [lst Dept. 1999]),
defendants were held liable under scaffold law for injur-
ies sustained by a worker when he fell from an unsecured
ladder on which he was standing when it was struck by
section of pipe he had [*8] cut; plaintiff's actions in cut-
ting the pipe were found not to be the sole proximate
cause of his injuries. The same reasoning was applied in
Dunn v. Consolidated Edison Co. of New York, Inc. (272
A.D.2d 129, 707 N.Y.S.2d 420 [1st Dept.2000]), in which
the court held:
Plaintiff, a boiler maker, was injured
while removing a blank flange during the
renovation of one of defendant's plants.
Page 174
The flange fell, shifting the steel grating
on the floor on which plaintiffs A-frame
ladder was positioned, and then struck the
ladder, both of which actions of the flange
caused the ladder to become unsteady,
resulting in plaintiffs fall and injury. It is
plain that the ladder used by plaintiff was
not an adequate safety device for the task
plaintiff had been directed to perform, en-
tailing work at a significant elevation re-
moving heavy pipe components. Defend-
ant's failure to furnish a safety device suf-
ficient to protect plaintiff against the elev-
ation-related risk posed by [**14] the as-
signed work constituted a breach of the
duty imposed by Labor Law § 240(1)
(see, Gordon v. Eastern Ry. Supply, 82
N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626
N.E.2d 912; compare, Weber v. 1111 Park
Ave. Realty Corp., 253 253 A.D.2d 376,
676 N.Y.S.2d 174), and regardless of the
propriety of the method plaintiff utilized
in removing the flange, that failure "was a
substantial cause of the events which pro-
duced the injury" ( Gordon v. Eastern Ry.
Supply, supra, at 562, 606 N.Y.S.2d 127,
626 N.E.2d 912, quoting Derdiarian v.
Felix Contr. Corp., 51 N.Y.2d 308, 315,
434 N.Y.S.2d 166, 414 N.E.2d 666).
The case of Kadoic v. 1154 First Ave. Tenants Corp.
(277 A.D.2d 66, 277 A.D.2d 66, 716 N.Y.S.2d 386 [1st
Dept. 2000]) clearly illustrates the proposition that the
plaintiffs negligence in handling the work to be per-
formed will not transform ordinary negligence into the
"sole proximate cause" of the accident. In Kadoic,
plaintiff fell when the weight of the sign being removed
from the side of a building caused him to loose his bal-
ance. The court held:
Plaintiff presented an essentially con-
sistent [**15] version of the circum-
stances of the accident in both his depos-
ition testimony and affidavit, demonstrat-
ing that, whether or not the sign he was
attempting to remove actually touched
him or the ladder, the force of the sudden
release of the sign caused him to lose his
balance and fall. Regardless of the propri-
ety of the method plaintiff used to remove
the sign, it is plain that the ladder he used
was not an adequate safety device for the
task he was performing, rendering defend-

ants, who admittedly provided no safety
devices, absolutely liable under section
240(1) ( Dunn v. Consolidated Edison
Co., 272 A.D.2d 129, 707 N.Y.S.2d 420).
[*9] As noted supra, this is not a case in which the
plaintiffs abuse of the safety device would transform his
conduct into the "sole proximate cause" of the accident.
By way of comparison, in Anderson v. Schul/Mar Const.
Corp. (212 A.D.2d 493, 622 N.Y.S.2d 310 [2d Dept.
1995]), the court found that a question of fact existed re-
garding whether the violation of 240(1) was a proximate
cause of the plaintiffs injuries. In that case there was
testimony adduced at trial that the plaintiff fell when he
missed a rung while descending the [**16] ladder facing
away from and not holding onto the ladder carrying a
cup of coffee in one hand and his breakfast in the other.
Plaintiffs obvious misuse of the ladder (which was ad-
equate for the assigned task) in that case afforded a reas-
onable fact finder an opportunity to conclude that the
plaintiffs conduct was the sole proximate cause of his in-
juries.
In this action, by comparison, the placement of the
ladder "upside down" (if that occurred) was not, as noted
above, a "misuse" of the ladder, since plaintiff was
merely attempting to work in a more safe manner, and
since plaintiff was not issued a safety device (ladder or
scaffold) which was adequate to perform the task at
hand.
Indemnity
DASNY seeks summary judgment against TDX.
However, the indemnity clause relied on by DASNY re-
quires a showing that TDX was negligent. There has not
been a showing at this juncture that TDX was in fact
negligent.
TDX seeks indemnity from S & P. The broadly
worded contractual indemnity provision relied on by
TDX does not require any finding of negligence or fault
on the part of S & P (see, Brown v. Two Exch. Plaza
Partners, 76 N.Y.2d 172, 175, 556 N.Y.S.2d 991, 556
N.E.2d 430 [under [**17] broadly drafted contract of in-
demnity, although there is no evidence of negligence on
subcontractor's [*10] part, the indemnification agree-
ment by its terms required subcontractor to indemnify
general contractor].) However, it has not been estab-
lished by TDX that TDX was itself free from negligence.
Knowledge on the part of TDX that S & P was using un-
safe practices raises issues of fact as to whether TDX
was negligent in not further monitoring the activities of S
& P.
Claims Raised Under the Common Law and Labor Law
Page 175
200
Labor Law § 200 is a codification of the common
law duty of an owner or employer to provide employees
with a safe place to work (see, Jock v. Fien, 80 N.Y.2d
965, 590 N.Y.S.2d 878, 605 N.E.2d 365 [1992].) Liability
under Labor Law § 200 can not be imposed unless
plaintiff establishes that the owner or general contractor
supervised or controlled the work performed or had actu-
al or constructive notice of the unsafe condition which
precipitated plaintiffs injury (see, Comes v. New York
State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d
168, 631 N.E.2d 110; Murray v. South End Improvement
Corp., 263 A.D.2d 577, 578, 693 N.Y.S.2d 264 [**18]
[3d Dept. 1999]; Butigian v. Port Authority of New York
and New Jersey, 266 A.D.2d 133, 699 N.Y.S.2d 41 [1st
Dept. 1999] [no evidence that owner or tenant exercised
supervisory control over plaintiffs work].)
It has not been shown the DASNY was responsible
for the manner in which plaintiff performed his work,
and thus no cause of action for common law negligence
or under Labor Law 200 lies against DASNY. With re-
spect to TDX, on the other hand, there is evidence that it
was aware of the unsafe practices employed by S & P,
and thus there exist issues of fact as to whether TDX was
negligent.
[*11] CONCLUSION
Plaintiffs motion for summary judgment on its claim
under Labor Law 240(1) is granted.
The cross-motion of defendant City to dismiss the
complaint and all cross-claims against it is granted. No
party has submitted any evidence that the City has any
involvement in the premises at issue, and it is not dis-
puted that DASNY is the owner. 3
3 The answer of defendant DASNY admits own-
ership of the structure.
[**19] The cross-motions seeking indemnity are
denied.
The cross-motion by TDX to compel discovery is
granted to the extent of directing plaintiff to provide all
discovery responses not previously served on defendant.
DASNY's cross-motion is granted only to the extent
of dismissing the claims against it for common law negli-
gence and for violation of Labor Law 200.
All other relief not specifically granted herein is
denied.
Settle order.
9-25-01 DATE
Hon. Paul A. Victor, J.S.C.
 Page 176

54 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Me'chelle Missouri et al., Infants, by Their Mother and Natural Guardian, Gail Mis-
souri, et al., Plaintiffs, v. Ernestine Boyce et al., Defendants.

Index No. 26813/96

SUPREME COURT OF NEW YORK, KINGS COUNTY

182 Misc. 2d 312; 696 N.Y.S.2d 649; 1999 N.Y. Misc. LEXIS 407

September 9, 1999, Decided

DISPOSITION: [***1] Plaintiff's complaint dis- holding that defendant housing agency owed them no
missed and defendant's cross claim granted. special duty that would give rise to a negligence action,
and that no action existed for the violation of state and
CASE SUMMARY: local laws governing lead-based paint. The court dis-
missed defendant owner's cross-claim.

PROCEDURAL POSTURE: Plaintiffs, on common
law negligence theories based on the violation of a duty
and the violation of state and local laws, sued defendants
for injuries caused by lead-based paint exposure. De-
fendant owner sought indemnity from defendant housing
agency, which sought summary judgment.
OVERVIEW: Plaintiffs, tenants under the United States
Housing Act of 1937 § 8, 42 U.S.C.S. § 1437f, and its
implementing regulations, 24 C.F.R. §§ 882 and 982,
sought damages for injuries they sustained after being
exposed to lead-based paint. Defendant housing agency
argued that it was not liable, because it did not own the
apartment. The court first noted that no right of action
existed under the housing act, its regulations, or the
Lead-Based Paint Poisoning Prevention Act, 42 U.S.C.S.
§ 4822 et seq., allowing plaintiffs to sue defendant hous-
ing agency. The court then rejected plaintiff's negligence
argument, finding that defendant housing authority did
not have a special duty to plaintiffs simply because it had
determined plaintiffs were qualified for low income
housing. The court also found that violations of state and
local laws governing lead-based paint did not establish
negligence.
OUTCOME: The court dismissed plaintiffs' complaint,
CORE TERMS: paint, housing, infant, summary judg-
ment, tenants, inspection, apartment, common-law, pois-
oning, local laws, housing authority, private right of ac-
tion, cross claim, abatement, exposure, subsidized hous-
ing, implementing, lead-based, discovery, tenancy, hous-
ing agency, action to recover damages, lead poisoning,
personal injuries, administered, placement, detriment,
owed, Lead-Based Paint Poisoning Prevention Act
LPPPA, justifiably relied
LexisNexis(R) Headnotes
Civil Procedure > Federal & State Interrelationships >
Federal Common Law > General Overview
Public Health & Welfare Law > Housing & Public
Buildings > Low Income Housing
Real Property Law > Environmental Regulation > In-
door Air & Water Quality
[HN1] No private right of action exists under the Lead-
Based Paint Poisoning Prevention Act, 42 U.S.C.S. §
4822 et seq., United States Housing Act of 1937 § 8, 42
U.S.C.S. § 1437f, or 24 C.F.R. §§ 882 and 982 that would
enable individuals to sue a public housing agency.

Torts > Negligence > Duty > Affirmative Duty to Act >
Special Relationships > Government Officials
Torts > Public Entity Liability > Immunity > Sovereign
Immunity
Torts > Public Entity Liability > Liability > General
Overview
[HN2] A municipal agency may not be held liable to in-
jured persons for negligently exercising or performing its
governmental functions or its obligations imposed by
statutes or regulations in the absence of proof of the ex-
istence of a special duty owing to the persons injured in
contrast to a duty owed to the general public. Such a
duty is found when a special relationship exists between
the municipal agency and an individual or class of per-
sons warranting the imposition of a duty to use reason-
able care for those persons' benefit.
Governments > Local Governments > Administrative
Boards
Torts > Negligence > Duty > Affirmative Duty to Act >
Failure to Act
Torts > Negligence > Duty > Affirmative Duty to Act >
Voluntary Assumption of Duty
[HN3] Liability is imposed where a municipal agency
has voluntarily assumed a duty, the proper exercise of
which was justifiably relied upon by persons benefitted
thereby.
Governments > Local Governments > Administrative
Boards
Public Health & Welfare Law > Housing & Public
Buildings > Low Income Housing
Real Property Law > Environmental Regulation > In-
door Air & Water Quality
[HN4] United States Housing Act of 1937 § 8, 42
U.S.C.S. § 1437f, the Lead-Based Paint Poisoning Pre-
vention Act, 42 U.S.C.S. § 4822 et seq., and 24 C.F.R. §§
882 and 982 do not impose any affirmative duty upon the
public housing agency to enforce local and state laws
concerning lead paint. There is no cause of action against
a public housing agency for violations of state and local
laws governing lead paint.
Civil Procedure > Summary Judgment > Opposition >
General Overview
Civil Procedure > Summary Judgment > Supporting
Materials > General Overview
Governments > Local Governments > Claims By &
Against
[HN5] Pursuant to N.Y. C.P.L.R. 3212(f), a motion for
summary judgment may be denied to permit disclosure
Page 177
where it appears from affidavits submitted in opposition
to the motion that facts essential to justify opposition
may exist but cannot then be stated.
Civil Procedure > Summary Judgment > Supporting
Materials > General Overview
[HN6] The denial of a motion for summary judgment
pursuant to N.Y. C.P.L.R. 3212(f) must be supported by
something more than mere suspicion or surmise.
HEADNOTES
Public Housing - Liability to Tenant in Federally
Subsidized Housing - No Federal Private Right of Action
for Lead Paint Poisoning
1. Plaintiffs, tenants in Federally subsidized hous-
ing, have no Federal private right of action against de-
fendant New York City Housing Authority (NYCHA),
which administers their tenancies in its capacity as a pub-
lic housing agency (42 USC § 1437f), based upon injur-
ies suffered by the infant plaintiff as a result of exposure
to lead paint. Neither the Federal housing program, the
Lead-Based Paint Poisoning Prevention Act (42 USC §
4822 et seq.), nor their implementing regulations give
rise to a private right of action enabling individuals to
sue the NYCHA.
Public Housing - Liability to Tenant in Federally
Subsidized Housing - No Special Duty to Protect Tenants
from Lead Paint Poisoning
2. In an action to recover damages for personal in-
juries allegedly sustained by the infant plaintiffs by their
exposure to lead-based paint in their Federally subsidized
apartment, defendant New York City Housing Authority,
which administered plaintiffs' tenancy in its capacity as a
public housing agency (42 USC § 1437f), cannot he held
liable based upon common-law negligence in the absence
of proof of the existence of a special duty owing to
plaintiffs. Defendant cannot be deemed to have affirmat-
ively assumed a special duty to protect plaintiffs from
lead poisoning merely by determining that they were
qualified to receive its assistance in housing placement
and subsidies, and by acting on their behalf in providing
such assistance. Plaintiffs have not demonstrated that de-
fendant's acts in any way exceeded its general duty to
provide assistance in housing placement or its general
duty of inspection under Federal regulations (see, 24
CFR parts 882, 982). Furthermore, there is no evidence
that plaintiffs justifiably relied to their detriment upon
defendant's routine lead inspection.
Public Housing - Liability to Tenant in Federally
Subsidized Housing - No Special Duty to Protect Tenants
from Lead Paint Poisoning

3. In an action to recover damages for personal in-
juries allegedly sustained by the infant plaintiffs by their
exposure to lead-based paint in their Federally subsidized
apartment, defendant New York City Housing Authority,
which administered plaintiffs' tenancy in its capacity as a
public housing agency (42 USC § 1437f), cannot he held
liable in negligence for its alleged violations of State and
local laws and regulations regarding lead paint poison-
ing, since neither the Federal housing program nor the
Lead-Based Paint Poisoning Prevention Act (42 USC §
4822 et seq.) impose any affirmative duty upon a public
housing authority to enforce local and State laws con-
cerning lead paint. Moreover, State and local laws gov-
erning lead paint do not impose any duty upon defendant
with regard to lead paint inspection or abatement. Rather,
such duty is imposed upon other entities such as the De-
partment of Health.
Public Housing - Liability to Tenant in Federally
Subsidized Housing - No Special Duty to Protect Tenants
from Lead Paint Poisoning
4. In an action to recover damages for personal in-
juries allegedly sustained by the infant plaintiffs by their
exposure to lead-based paint in their Federally subsidized
apartment, in view of the court's determination that the
New York City Housing Authority (NYCHA), which ad-
ministered plaintiffs' tenancy in its capacity as a public
housing agency (42 USC § 1437f), cannot be held liable
to plaintiffs for its alleged violation of State and local
laws regarding lead paint poisoning or for its alleged
negligence and violation of its common-law duties, de-
fendant building owner may not seek contribution or in-
demnification from NYCHA. Furthermore, defendant is
not entitled to discovery to enable her to ascertain wheth-
er NYCHA undertook some additional responsibility to
plaintiffs and induced plaintiffs to rely upon its findings
to their detriment. Defendant and plaintiffs have not
demonstrated that discovery would produce any evidence
supporting liability on the part of NYCHA. A General
Municipal Law § 50-h hearing has already been conduc-
ted with regard to plaintiffs' claims, and there are no fac-
tual allegations by plaintiffs that NYCHA took any steps
beyond those required of it in its role as administrator.
Accordingly, NYCHA is granted summary judgment dis-
missing both the complaint and cross claim asserted
against it.
COUNSEL: Herzfeld & Rubin, New York City (Herbert
Lazar of counsel), for New York City Housing Authority,
defendant. Tarshis & Hammerman, L. L. P., Forest Hills
(Michael A. Hammerman of counsel), for Ernestine
Boyce, defendant. Paparian & Bury, New York City
(Thomas A. Walbaum of counsel), for plaintiffs.
JUDGES: JAMES H. SHAW, JR., J.
Page 178
OPINION BY: JAMES H. SHAW, JR.
OPINION
[*313] [**650] James H. Shaw, Jr., J.
In this action to recover damages for personal injur-
ies allegedly [*314] sustained by the infant plaintiffs
Me'chelle Missouri and Gayle Missouri (the infant
plaintiffs) by their exposure to lead-based paint, defend-
ant New York City Housing Authority (NYCHA) moves
for summary judgment dismissing plaintiffs' complaint
and defendant Ernestine Boyce's cross claim as against
it.
This action was brought on behalf of two infant
plaintiffs, by their mother and natural guardian, plaintiff
Gail Missouri, and Gail Missouri, individually, to recov-
er damages against defendants Ernestine Boyce and the
NYCHA for injuries allegedly sustained by the infant
plaintiffs from their [***2] exposure in 1995 to lead-
based paint within an apartment in a building, located at
958 [**651] Bedford Avenue, in Brooklyn, New York.
The infant plaintiffs were diagnosed with lead poisoning
in July 1995. Defendant Ernestine Boyce is the owner of
said apartment building. Plaintiffs were tenants in the
subject apartment under the Federal section 8 program of
the United States Housing Act of 1937, codified at 42
USC § 1437f. The NYCHA administered plaintiffs' ten-
ancy at the aforesaid apartment in its capacity as a public
housing agency (PHA) pursuant to 42 USC § 1437f (sec-
tion 8), as implemented by the United States Department
of Housing and Urban Development (HUD) regulations
set forth in 24 CFR parts 882 and 982.
Plaintiffs' complaint as against the NYCHA alleges
that the NYCHA was negligent in failing to enforce State
and local laws regarding lead paint, and also alleges
claims of common-law negligence. Defendant Ernestine
Boyce has interposed a cross claim seeking contribution
and indemnification from the NYCHA.
In support of its motion for summary judgment, the
NYCHA argues that since it was never the owner of the
[***3] section 8 property at issue and its relationship to
plaintiffs and the subject apartment arose solely pursuant
to the section 8 statute and regulations, it, as a nonowner
PHA, cannot be held liable herein. The precise issue of
whether a private right of action exists against the
NYCHA under the section 8 statute, the Lead-Based
Paint Poisoning Prevention Act (LPPPA) (codified at 42
USC § 4822 et seq.), and their implementing regulations
was recently addressed in Roman v Morace (1997 WL
777844, 1997 US Dist LEXIS 19926 [SD NY, Dec. 16,
1997]). In that case, the United States District Court for
the Southern District of New York, after conducting an

exhaustive analysis of the section 8 statute (42 USC §
1437f), the LPPPA, [*315] and their implementing reg-
ulations, under the standards set by the United States Su-
preme Court in Cort v Ash (422 US 66), concluded that
[HN1] no private right of action exists under these laws
enabling individuals to sue the NYCHA.
This ruling in Roman v Morace (supra) [***4] is
consistent with the rulings by other Federal courts and
numerous New York State Supreme Courts which have
recently addressed this issue (see, Lindsay v New York
City Hous. Auth., 1999 WL 104599, 1999 US Dist LEXIS
1893 [ED NY, Feb. 24, 1999]; Franklin v Caisi Mgt. Co.,
US Dist Ct, ED NY, June 5, 1997, Raggi, J., 95 Civ
3460; Murdock v Harris, NYLJ, Aug. 4, 1999, at 24, col
3 [Belen, J.]; Cardona v 642-652 Willoughby Ave. Corp.,
182 Misc 2d 223; Greene v New York City Hous. Auth.,
Sup Ct, Kings County, June 18, 1999, Rappaport, J., in-
dex No. 28051/96; Palmer v Millien, NYLJ, Mar. 31,
1999, at 35, col 1 [Belen, J.]; Williams v City of New
York, Sup Ct, NY County, Mar. 30, 1999, Gangel-Jacob,
J., index No. 116908/96; Jenes v Katz, Sup Ct, Kings
County, Sept. 25, 1998, Ruchelsman, J., index No.
79140/97; Tavares v Shendell Realty Group, Sup Ct,
Bronx County, Aug. 25, 1998, McKeon, J., index No.
7827/97; Hill v 1801 Weeks Ave. Corp., Sup Ct, Bronx
County, July 22, 1998, Katz, J., index No. 26402/97;
Bannister v Samuel, Sup Ct, Kings County, June 5, 1998,
Barasch, J., index No. 49154/96; Feliciano v 1509 St.
[***5] Nicholas Assocs., Sup Ct, Bronx County, May 1,
1998, Crispino, J., index No. 18720/96; Seaberry v
Henry, Sup Ct, Kings County, Apr. 22, 1998, Held, J., in-
dex No. 79367/97).
In opposition to the NYCHA's motion, plaintiffs es-
sentially concede that there is no private right of action
against the NYCHA under the section 8 statute, the
LPPPA, or their implementing regulations. Plaintiffs ar-
gue, however, that the NYCHA may be held liable to
them based upon common-law negligence and for its al-
leged violation of State and local laws and regulations.
In addressing plaintiffs' arguments, the court notes
that [HN2] a municipal agency may not be held liable to
injured [**652] persons for negligently exercising or
performing its governmental functions or its obligations
imposed by statutes or regulations in the absence of
proof of "the existence of a special duty owing to the
persons injured in contrast to a duty owed to the general
public" (Bargy v Sienkiewicz, 207 AD2d 606, 608; see
also, Bonner v City of New York, 73 NY2d 930, 932;
Garrett v Holiday Inns, 58 NY2d 253, 261; [***6]
Florence v Goldberg, 44 NY2d 189, 195-196). "Such a
duty is found when a special relationship exists [*316]
between the municipal ... [agency] and an individual or
class of persons warranting the imposition of a duty to
Page 179
use reasonable care for those persons' benefit" (Garrett v
Holiday Inns, supra, 58 NY2d, at 261). Pursuant to this
principle, [HN3] liability is imposed where the municipal
agency "has voluntarily assumed a duty, the proper exer-
cise of which was justifiably relied upon by persons be-
nefitted thereby" (supra, at 262; see also, Bargy v Sien-
kiewicz, supra, 207 AD2d, at 608-609).
Plaintiffs contend that a special duty was owed to
them by the NYCHA, and that the NYCHA may, there-
fore, be held liable to them for common-law negligence.
In support of this contention, plaintiffs rely upon Bargy v
Sienkiewicz (supra, 207 AD2d 606), a lead-poisoning
case, in which the Appellate Division, Third Department,
denied summary judgment to the County of Albany,
holding that said county had assumed a special duty to
[***7] the lead-poisoned infant plaintiffs therein. Such
reliance, however, is misplaced since, in Bargy v Sien-
kiewicz (supra, at 609), there was evidence demonstrat-
ing that the county had exceeded its general duty of lead
paint inspection and abatement. Specifically, the county
had recommended the removal of the infants during the
lead paint abatements and had kept the family therein ap-
prised of the progress of each abatement (supra). There
was also detrimental reliance by the plaintiff in that case
upon representations by the county's inspector as to the
safety of the premises (supra). Such inspector advised
said plaintiff each time a lead paint hazard was found,
stayed in contact with her, and gave her his approval to
return to the premises after an inadequate abatement had
been completed, resulting in the lead poisoning of the in-
fants therein (supra).
In the case at bar, in contrast, plaintiffs merely assert
that the NYCHA voluntarily and affirmatively assumed a
special duty to them by determining that they were quali-
fied to receive its assistance in housing placement and
subsidies, and by acting on their behalf in providing such
assistance by placing [***8] them in housing chosen and
supervised by it. Plaintiffs also assert that the NYCHA
further assumed a special duty to them by its perform-
ance of a mandatory routine visual inspection of the
premises before placing them to live at such premises.
The foregoing assertions by plaintiffs, however, are
patently insufficient to establish a special relationship
between plaintiffs and the NYCHA so as to create a duty
owed by the NYCHA to them to protect them from lead
poisoning (see, Lindsay v New York City Hous. Auth.,
supra, 1999 WL 104599, 1999 US Dist LEXIS 1893;
[*317] Murdock v Harris, supra, NYLJ, Aug. 4, 1999, at
24, col 3; Palmer v Millien, supra, NYLJ, Mar. 31, 1999,
at 35, col 1; Hill v 1801 Weeks Ave. Corp., supra, Sup Ct,
Bronx County, July 22, 1998). There are no facts alleged
showing that the NYCHA's acts in any way exceeded its
general duty to provide assistance in housing placement

or its general duty of inspection under the Federal regula-
tions in its role as a section 8 administrator, or that it
took any steps beyond those required of it pursuant to
statutory mandates (see, Lindsay v New York City Hous.
Auth., supra; Murdock [***9] v Harris, supra; Palmer
v Millien, supra; Hill [**653] v 1801 Weeks Ave. Corp.,
supra). Nor are there any factual allegations or evidence
that plaintiffs justifiably relied to their detriment upon
the NYCHA's routine lead inspection (see, Lindsay v
New York City Hous. Auth., supra; Garrett v Holiday
Inns, supra, 58 NY2d, at 261-262; Bargy v Sienkiewicz,
supra, 207 AD2d, at 609). Thus, inasmuch as no special
duty was owed by the NYCHA to plaintiffs, liability for
common-law negligence may not be imposed upon it
(see, Lindsay v New York City Hous. Auth., supra; Gar-
rett v Holiday Inns, supra, 58 NY2d, at 261-262; Willi-
ams v City of New York, supra, Sup Ct, NY County, Mar.
30, 1999).
Plaintiffs' further contention that the NYCHA may
be held liable to them in negligence for its alleged viola-
tions of State and local laws and regulations respecting
lead paint poisoning is also devoid of merit. [HN4] The
section 8 statute, the LPPPA, and the implementing regu-
lations do not impose any affirmative duty upon the
[***10] PHA to enforce local and State laws concerning
lead paint (see, Roman v Morace, supra, 1997 WL
777844, 1997 US Dist LEXIS 19926; Palmer v Millien,
supra, NYLJ, Mar. 31, 1999, at 35, col 1). Moreover, in
Roman v Morace (supra), the Federal District Court spe-
cifically held that there was no cause of action against
the NYCHA for violations of State and local laws gov-
erning lead paint since such laws did not impose any
duty upon the NYCHA with regard to lead paint inspec-
tion or abatement but, rather, imposed the duty of en-
forcement on other entities such as the Department of
Health. This holding in Roman v Morace (supra) has
been consistently followed by New York State Supreme
Court decisions (see, Palmer v Millien, supra, NYLJ,
Mar. 31, 1999, at 35, col 1; Tavares v Shendell Realty
Group, supra, Sup Ct, Bronx County, Aug. 25, 1998;
Hill v 1801 Weeks Ave. Corp., supra, Sup Ct, Bronx
County, July 22, 1998).
Thus, inasmuch as the NYCHA may not be held li-
able to plaintiffs for its alleged violation of State and loc-
al laws and [*318] regulations or for its alleged negli-
gence and violation of its common-law [***11] duties,
summary judgment dismissing plaintiffs' complaint as
against it must be granted (see, CPLR 3212 [b]; Roman v
Morace, supra; Lindsay v New York City Hous. Auth.,
supra, 1999 WL 104599, 1999 US Dist LEXIS 1893;
Palmer v Millien, supra; Tavares v Shendell Realty
Group, supra; Hill v 1801 Weeks Ave. Corp., supra). In
Page 180
view of the court's determination, defendant Ernestine
Boyce is not entitled to contribution or indemnification
from the NYCHA, and summary judgment dismissing
her cross claim against it must also be granted (see, Mur-
dock v Harris, supra, NYLJ, Aug. 4, 1999, at 24, col 3;
Palmer v Millien, supra, NYLJ, Mar. 31, 1999, at 35, col
1; Jenes v Katz, supra, Sup Ct, Kings County, Sept. 25,
1998).
Defendant Ernestine Boyce's argument, in opposi-
tion to the NYCHA's motion, that summary judgment
dismissing her cross claim against the NYCHA should be
denied in order to permit her to conduct discovery to en-
able her to ascertain whether the NYCHA undertook
some additional responsibility to plaintiffs and induced
plaintiffs to rely upon its findings to their detriment is re-
jected. The court notes that [***12] a General Municip-
al Law § 50-h hearing has been conducted with regard to
plaintiffs' claims and, as discussed above, there are no
factual allegations by plaintiffs that the NYCHA took
any steps beyond those required of it in its role as a sec-
tion 8 administrator. While, [HN5] pursuant to CPLR
3212 (f), a motion for summary judgment may be denied
to permit disclosure to be had where "it appear[s] from
affidavits submitted in opposition to the motion that facts
essential to justify opposition may exist but cannot then
be stated," here, the opposing papers by Ernestine Boyce
and plaintiffs do not give any reason to believe that dis-
covery would produce [**654] any evidence supporting
liability on the part of the NYCHA.
Ernestine Boyce's attorney's conclusory speculation
and expression of mere hope, in his affirmation in oppos-
ition to the motion, does not demonstrate what facts or
evidence might be uncovered through discovery and does
not provide a basis for postponing the court's decision on
this motion (see, CPLR 3212 [***13] [f]; Wood v Other-
son, 210 AD2d 473, 474; Pow v Black, 182 AD2d 484,
485; Denkensohn v Davenport, 130 AD2d 860, 861;
Griffin v Cortland Mem. Hosp., 85 AD2d 837). [HN6]
The denial of a motion for summary judgment pursuant
to CPLR 3212 (f) must be supported by something more
than mere suspicion or surmise (Denkensohn v Daven-
port, supra, 130 AD2d, at 861). Thus, to deny the
NYCHA's motion pursuant to CPLR 3212 (f), [*319]
under the circumstances of this case, "would result in im-
permissibly sanctioning fishing expeditions premised
upon surmise, conjecture and speculation" (Kennerly v
Campbell Chain Co., 133 AD2d 669, 670; see also,
Cadle Co. v Hoffman, 237 AD2d 555; La Scala v D'An-
gelo, 104 AD2d 930, 931).
Accordingly, the NYCHA's motion for summary
judgment dismissing plaintiffs' complaint and defendant
Ernestine Boyce's cross claim as against it is granted.
 Page 181

55 of 55 DOCUMENTS

Cited
As of: Sep 10, 2008

Casey Cardona, an Infant, by His Mother and Natural Guardian, Jessica Williams,
et al., Plaintiffs, v. 642-652 Willoughby Avenue Corp. et al., Defendants.

Index No. 1323/96

SUPREME COURT OF NEW YORK, KINGS COUNTY

182 Misc. 2d 223; 697 N.Y.S.2d 231; 1999 N.Y. Misc. LEXIS 416

June 29, 1999, Decided

SUBSEQUENT HISTORY: [***1] As Corrected
November 29, 1999.
DISPOSITION: Motion to dismiss granted.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant housing au-
thority moved for summary judgment to dismiss the
complaint of plaintiffs mother and infant for damages to
infant as a result of exposure to lead paint.
OVERVIEW: Plaintiffs lived in a housing unit run by
defendant. Infant was exposed to lead paint in the unit
and was injured. Plaintiffs brought suit for damages. De-
fendant moved for summary judgment on the basis that it
was a non-owner public housing authority and, as such,
plaintiffs could not maintain a private cause of action
against it under federal regulations and it had no duty to
enforce local laws regarding lead paint. The court held
that Congress intended HUD to be responsible for com-
pliance with lead paint programs, thus a private cause of
action and remedy against defendant was inconsistent
with congressional intent under the lead paint laws. Also,
none of the lead paint laws or federal regulations im-
posed on defendant a duty to enforce local lead paint
laws and defendant had not acted beyond its usual scope
as a public housing authority.
OUTCOME: The court granted defendant's motion and
dismissed plaintiffs' complaint because defendant had no
duty to enforce lead paint laws and federal regulations
were not intended to create a private cause of action or
remedy against entities such as defendant for violations
or enforcement of lead paint laws.
CORE TERMS: paint, housing, cause of action, apart-
ment, right of action, implementing, inspection, tenants,
infant, municipality's, poisoning, hazards, housing
agency, subsidized housing, legislative intent, lead-
based, ensuring, nonowner, removal, injuries suffered,
congressional intent, inappropriate, enforceable, com-
mon-law, relegated, exposure, tenancies, intend, Lead-
Based Paint Poisoning Prevention Act LPPPA, private
right
LexisNexis(R) Headnotes
Governments > Federal Government > U.S. Congress
Governments > Legislation > Interpretation
[HN1] Whether an implied private right of action exists
under a Federal statute is strictly a matter of congression-
al intent. The test reflects a concern, grounded in the sep-
aration of powers, that Congress rather than the courts
controls the availability of remedies for the violation of
statutes.
Civil Procedure > Federal & State Interrelationships >
Federal Common Law > General Overview
Governments > Federal Government > U.S. Congress
Governments > Legislation > Interpretation
[HN2] Four factors courts are required to consider in de-

termining whether an individual may have a private right
of action under a Federal statute that is silent on the sub-
ject: 1) Whether the plaintiff is one of the class for whose
"especial" benefit Congress enacted the statute, that is,
does the statute create a federal right in favor of the
plaintiff; 2) Whether there exists any indication of legis-
lative intent, explicit or implicit, either to create such a
remedy or to deny one; 3) Whether it remains consistent
with the underlying purposes of the legislative scheme to
imply such a remedy for the plaintiff; and 4) Whether the
cause of action is one traditionally relegated to state law,
in an area basically the concern of the States, so that it
would be inappropriate to infer a cause of action based
solely on federal law.
Governments > Federal Government > U.S. Congress
Governments > Legislation > Interpretation
[HN3] Courts examine three factors to determine wheth-
er a particular statutory provision gives rise to a Federal
right. First, Congress must have intended that the provi-
sion in question benefit the plaintiff. Second, the plaintiff
must show that the asserted right is not so vague and
amorphous that its enforcement would strain judicial
competence. Third, the statute must unambiguously im-
pose a binding obligation upon the states, meaning the
provision must be couched in mandatory rather than
precatory terms.
Torts > Negligence > Duty > Affirmative Duty to Act >
Special Relationships > Government Officials
Torts > Public Entity Liability > Immunity > Sovereign
Immunity
Torts > Public Entity Liability > Liability > General
Overview
[HN4] A municipality cannot be held liable for negli-
gently exercising its governmental functions unless there
is proof of the existence of a special duty owing to the
persons injured in contrast to a duty owed to the general
public. Such a duty is found when a special relationship
exists between the municipality and an individual or
class of persons, warranting the imposition of a duty to
use reasonable care for those persons' benefit. This prin-
ciple operates to impose liability where the municipality
has voluntarily assumed a duty, the proper exercise of
which was justifiably relied upon by persons benefited
thereby. Establishment of a special relationship requires
demonstration of the municipality's assumption, through
promises or actions, of an affirmative duty to act on be-
half of the victim, knowledge on the part of the municip-
ality's agents that inaction could lead to harm, some form
of direct contact between the municipality's agents and
the victim, and justifiable reliance by the victim upon the
municipality's undertaking .
Page 182
HEADNOTES
Public Housing - Liability to Tenant in Federally
Subsidized Housing - No Federal Private Right of Action
for Lead Paint Poisoning
1. Plaintiffs, tenants in Federally subsidized hous-
ing, have no Federal private right of action against de-
fendant New York City Housing Authority (NYCHA),
which administers their tenancies in its capacity as a pub-
lic housing agency (42 USC § 1437f), based upon injur-
ies suffered by the infant plaintiff as a result of exposure
to lead paint. While the Lead-Based Paint Poisoning Pre-
vention Act (LPPPA) and its implementing regulations
(42 USC § 4822 et seq.; 24 CFR part 982) create an en-
forceable Federal right in plaintiffs' favor with regard to
lead paint detection, implying a private right of action to
enforce that right would be inconsistent with the con-
gressional intent that the Department of Housing and
Urban Development (HUD) bear the primary responsib-
ility for ensuring compliance with all program require-
ments. Congress provided an administrative scheme to
remedy violations of the LPPPA by vesting in HUD the
responsibility of ensuring that owners and public housing
agencies comply with Federal requirements. Since Con-
gress erected a regulatory scheme in sufficient detail to
accomplish the LPPPA goals, the implication of a private
remedy would be inconsistent with that purpose. In ad-
dition, the express Federal usurpation of local standards
regarding lead paint inspection and removal (see, 24
CFR 35.40 [c]) also indicates that a private remedy
would be inappropriate. Furthermore, neither the Federal
housing program, the LPPPA nor their implementing reg-
ulations impose an affirmative duty on public housing
agencies to enforce local and State laws concerning lead
paint. Responsibility for maintenance rests primarily on
the property owner and not the agency (see, 24 CFR
982.404). Unless NYCHA is the owner of a building,
there is no statutory or regulatory provision that requires
NYCHA to abate lead paint conditions.
Public Housing - Liability to Tenant in Federally
Subsidized Housing - No Liability for Negligent Lead
Paint Inspection
2. Plaintiffs, tenants in Federally subsidized hous-
ing, fail to state a common-law negligence cause of ac-
tion against defendant New York City Housing Authority
(NYCHA), which administers their tenancies in its capa-
city as a public housing agency (42 USC § 1437f), based
upon injuries suffered by the infant plaintiff as a result
of exposure to lead paint. NYCHA's alleged negligent
lead paint inspection and its failure to detect hazardous
lead levels in plaintiffs' apartment cannot render it liable
for damages in the absence of proof of a special duty ow-
ing to plaintiffs. Plaintiffs have failed to demonstrate

that NYCHA acted beyond its usual scope as a public
housing agency and there is no proof that a special rela-
tionship existed between NYCHA and plaintiffs.
Moreover, there can be no common-law cause of action
against NYCHA for violations of State and local lead
paint poisoning laws since such laws impose the duties
of enforcement on entities other than NYCHA.
COUNSEL: Herzfeld & Rubin, New York City (Herbert
Lazar of counsel), for New York City Housing Authority,
defendant. Morrison, Mahoney & Miller, New York
City, for Sea Park East Co. and another, defendants.
Levy Philips & Konigsberg, New York City (Philip
Monier of counsel), for plaintiffs.
JUDGES: EDWARD M. RAPPAPORT, J.
OPINION BY: EDWARD M. RAPPAPORT
OPINION
[*224] [**232] Edward M. Rappaport, J.
Defendant New York City Housing Authority
(NYCHA) moves for an order pursuant to CPLR 3212
granting it summary judgment dismissing the complaint.
In a second, amended notice of motion, NYCHA seeks
similar relief, but further seeks an order dismissing the
cross claims asserted against it. NYCHA also seeks an
award of costs for this motion. For the convenience of
the court, the initial motion is deemed to be subsumed by
the amended motion.
Infant plaintiff and his mother commenced an action
against defendants seeking damages for injuries suffered
by infant plaintiff as a result of exposure to lead paint.
Infant plaintiff, born in December 1990, and his mother
[***2] resided at apartment [**233] 35C, at 652 Wil-
loughby Avenue, Brooklyn, New York, from about the
time of infant's birth until October 2, 1993. Said apart-
ment and building is owned by defendant 642-652 Wil-
loughby Avenue Corp. While residing at that apartment,
infant plaintiff was diagnosed as having high blood lead
levels. Upon examination of the apartment, it was found
to contain high levels of lead paint. Subsequently, on or
around October 2, [*225] 1993, plaintiffs moved to
2970 27th Street, Brooklyn, New York, apartment 709,
where they continued to reside through the time of the
complaint in the within action. The latter apartment and
building is owned by defendant Sea Park East Co. Des-
pite the move, infant plaintiff continued to test positive
for elevated blood lead levels. An inspection by the New
York City Department of Health on June 17, 1994 resul-
ted in a determination that the second apartment, too, had
high levels of lead paint. Plaintiffs' tenancies at both
apartments were pursuant to the Federal section 8 pro-
Page 183
gram (42 USC § 1437f).
The stated grounds upon which defendant NYCHA
seeks summary judgment are: that it is a nonowner Pub-
lic [***3] Housing Authority (PHA) and, as such, there
is no private right of action under the Federal section 8
statute, the Lead-Based Paint Poisoning Prevention Act
(Pub L 91-695, 84 US Stat 2078 [LPPPA]) or their im-
plementing regulations; that neither the section 8 statute,
the LPPPA, nor their implementing regulations impose
any affirmative duty on a PHA to enforce local and State
laws concerning lead paint; that there is no direct cause
of action against a PHA (nonowner of premises) for fail-
ure to enforce State and local laws regarding lead paint;
and that there are no causes of action in tort against a
nonowner PHA.
For the reasons stated below, NYCHA's motion is
granted.
Plaintiffs assert that a direct private right of action
does exist under the Federal section 8 regulations and the
LPPPA. The section 8 and LPPPA statutes and imple-
menting regulations are sufficiently intertwined that they
should be viewed as one body of law, promulgated with
the objective of combating the evils of lead paint (see,
Roman v Morace, 1997 WL 777844, at 8-9, 1997 US
Dist LEXIS 19926 [SD NY, Dec. 16, 1997, Cote, J.]).
[HN1] [***4] "Whether an implied private right of
action exists under a federal statute is strictly a matter of
congressional intent" (Chan v City of New York, 1 F3d
96, 101, cert denied 510 US 978). "The test reflects a
concern, grounded in the separation of powers, that Con-
gress rather than the courts controls the availability of
remedies for violations of statutes" (Wilder v Virginia
Hosp. Assn., 496 US 498, 509, n 9).
In Cort v Ash (422 US 66), the Supreme Court set
[HN2] forth four factors courts are required to consider
in determining whether an individual may have a private
right of action under a Federal statute that is silent on the
subject: [*226] (a) whether the plaintiff is one of the
class for whose "especial" benefit Congress enacted the
statute, that is, does the statute create a Federal right in
favor of the plaintiff; (b) whether there exists any indica-
tion of legislative intent, explicit or implicit, either to
create such a remedy or to deny one; (c) whether it re-
mains consistent with the underlying purposes of the le-
gislative [***5] scheme to imply such a remedy for the
plaintiff; and (d) whether the cause of action is one tradi-
tionally relegated to State law, in an area basically the
concern of the States, so that it would be inappropriate to
infer a cause of action based solely on Federal law
(supra, at 78).
Some courts have combined these four criteria into a
single question of legislative intent (see, Monaghan,

Federal Statutory Review Under Section 1983 [**234]
and the APA, 91 Colum L Rev 233, 235). This court will
nevertheless address them separately.
a. Does the LPPPA Create a Federal Right in
Plaintiff's Favor?
[HN3] Courts examine three factors to determine
whether a particular statutory provision gives rise to a
Federal right (see, Wilder v Virginia Hosp. Assn., supra,
496 US, at 509). First, Congress must have intended that
the provision in question benefit the plaintiff. Second,
the plaintiff must show that the asserted right is not so
vague and amorphous that its enforcement would strain
judicial competence. Third, the statute must unambigu-
ously impose [***6] a binding obligation upon the
States, meaning the provision must be couched in man-
datory rather than precatory terms (see, Blessing v Free-
stone, 520 US 329, 341, citing Wilder v Virginia Hosp.
Assn., supra, 496 US, at 510-511).
The LPPPA specifies that Housing and Urban Devel-
opment (HUD) "shall establish procedures to eliminate
as far as practicable the hazards of lead based paint pois-
oning with respect to any existing housing which may
present such hazards and which is covered" by a HUD
program, such as section 8 (42 USC § 4822 [a] [1]). The
LPPPA's implementing regulations * declare that their
purpose is "to assure that purchasers and [*227] tenants
of all HUD-associated housing constructed prior to 1978
are notified of the hazards of lead-based paint which may
exist in such housing, of the symptoms and treatment of
lead-based paint poisoning, and of the importance and
availability of maintenance and removal techniques" (24
CFR 35.1). NYCHA does not dispute that the NYCHA's
relationship to plaintiffs arose pursuant to the Federal
section 8 program through which plaintiffs' apartment
was subsidized. Plaintiffs [***7] are clearly members of
the class of persons for whose benefit Congress enacted
the LPPPA. Therefore, plaintiffs have met the first part
of the Wilder test.
* According to the relevant case law, courts
may consider implementing regulations in de-
termining whether a statute creates a Federal right
(see, e.g., Blessing v Freestone, 520 US 329,
supra [implicitly taking into account regulations
implementing title IV-D of the Social Security
Act in analyzing whether Act created Federal
right]; Suter v Artist M., 503 US 347, 361-362
[considering regulations promulgated by the Sec-
retary of Health and Human Services implement-
ing the Adoption Assistance and Child Welfare
Act of 1990 in determining whether children had
Federal right to enforce provisions of Act];
Wright v City of Roanoke Redevelopment &
Page 184
Hous. Auth., 479 US 418, 431 [considering HUD
regulations in determining whether Federal right
existed]).
The LPPPA also contains specific and enforceable
[***8] requirements. 24 CFR part 982 requires a PHA
to conduct an initial lead paint inspection of section 8
housing units, as well as periodic inspections thereafter.
The regulations set forth procedures the PHAs must fol-
low in inspecting for the presence of lead paint (see, 24
CFR 982.405). These regulations are thus specific
enough to create a Federal right, and the clarity of these
requirements renders them capable of judicial enforce-
ment. Whereas enforcement of vague terms such as
"reasonable efforts"--a standard a Federal court found
did not create a Federal right in Suter v Artist M. (supra,
503 US, at 363)--might "strain judicial competence"
(Blessing v Freestone, supra, 520 US, at 341), the en-
forcement of the regulations in this case would not. The
statute thus meets the second part of the Wilder test.
Finally, the requirements the regulations impose on
the PHAs are not permissive. In addition to being de-
tailed, they employ the term "shall" in explaining the
PHA's obligations in conducting investigations, as well
as in outlining the owners' duties to conduct treatment
abatement (see, e.g., 24 CFR 982.401). The regulations,
[***9] therefore, are sufficiently "couched in mandatory,
rather than precatory, [**235] terms" (Blessing v Free-
stone, supra, 520 US, at 341) to create a Federal right.
The court finds that the LPPPA meets all three
prongs of the Wilder test and therefore provides plaintiffs
with an enforceable Federal right. Thus, plaintiffs satisfy
the first part of the Cort test.
[*228] b. Is There Legislative Intent to Create or
Deny a Federal Remedy?
The second portion of the Cort test focuses on
whether there exists any indication of legislative intent,
explicit or implicit, to create or deny a Federal remedy
(see, Cort v Ash, supra, 422 US, at 78). The LPPPA regu-
lations, as they appeared in 1992, are silent in regard to
whether individuals may privately enforce them. 24
CFR 982.406, however, which became effective on Oc-
tober 2, 1995, states that it "does not create any right of
the family, or any party other than HUD or the PHA, to
require enforcement of the [Housing Quality Standards]
requirements by HUD or the PHA, or to assert any claim
against HUD or the PHA, for damages, injunction or oth-
er relief, for the alleged failure [***10] to enforce the
[Housing Quality Standards]." Thus, this provision un-
ambiguously denies a private right of action against
PHAs, at least as of October 2, 1995, when the provision
became effective. Although the promulgation of 24 CFR
982.406 suggests to this court an intent to clarify that a

private right of action had never been authorized, the
regulation is not conclusive evidence that Congress did
not intend to create such a right during the period when
the cause of action in this case arose.
The regulations in place now and before the 1995 re-
visions create enforcement mechanisms to ensure that
owners and PHAs comply with Federal standards. To
ensure owners' compliance, for example, PHAs may
withhold section 8 payments or terminate their contracts
entirely (see, 24 CFR 982.404 [a] [2], [3]). To ensure
PHAs' compliance, HUD must review program opera-
tions and inspect PHAs' records (see, 24 CFR 982.401).
This enforcement scheme supports the view that Con-
gress intended HUD to bear the primary responsibility
for ensuring PHA compliance with all program require-
ments, which in turn supports a finding that a private
right of action is inconsistent with congressional [***11]
intent (see, Lindsay v New York City Hous. Auth., 1999
WL 104599, 1999 US Dist LEXIS 1893 [ED NY, Feb. 24,
1999, Gleeson, J.]). Consequently, the statute fails to
meet the second part of the Cort test.
c. Is Private Enforcement Consistent with the Under-
lying Purpose of the Legislative Scheme?
For the reasons stated above, the court finds that im-
plying a private right of action under the LPPPA is incon-
sistent with the legislative purposes underlying the stat-
ute. Congress provided an administrative scheme to
remedy violations of the [*229] LPPPA by vesting in
HUD the responsibility of ensuring that owners and
PHAs comply with Federal requirements. The statute it-
self specifies that HUD "shall establish procedures to
eliminate as far as practicable the hazards of lead based
paint poisoning with respect to any existing housing
which may present such hazards and which is covered"
by a HUD program (42 USC § 4822 [a] [1]). The ad-
ministrative mechanisms advance the statute's purpose of
assuring "that purchasers and tenants of all HUD-associ-
ated housing constructed prior to 1978 are notified of the
hazards of lead-based paint [***12] which may exist in
such housing, of the symptoms and treatment of lead-
based paint poisoning, and of the importance and avail-
ability of maintenance and removal techniques" (24 CFR
35.1). Because it appears that Congress erected a regu-
latory scheme in sufficient detail to accomplish the
LPPPA goals, the court concludes that the implication of
a private remedy is inconsistent with that purpose (see,
Chan v City of New York, supra, 1 F3d, at 102, cert
denied 510 US 978).
[**236] d. Is this Cause of Action Traditionally Re-
legated to State Law?
The fourth part of the Cort test--whether the cause
of action is one so traditionally relegated to the States
Page 185
that an implied Federal cause of action would be inap-
propriate--weighs in favor of plaintiffs. Although hous-
ing inspection has traditionally been a State and local
function, Congress has declared its intention to super-
cede such authority with respect to lead paint detection
(see, 24 CFR 35.40 [c]). This express usurpation of local
standards regarding lead paint inspection and removal
provides sufficient substantiation for the conclusion that
a Federal cause of action would not be [***13] appro-
priate.
Considering all the Cort factors together, the court
finds that Congress did not intend to create a private
right of action under the LPPPA. While nothing exists in
the legislative history or the text of the statute indicating
an intent to deny a private remedy, neither does any such
evidence point to an intent to confer a private remedy.
"The federal judiciary will not engraft a remedy on a
statute, no matter how salutary, that Congress did not in-
tend to provide" (California v Sierra Club, 451 US 287,
297). This court, too, is not inclined to create Federal
remedies where the Federal courts have not. Thus " 'the
essential predicate for implication of a private remedy
simply does not exist' " (DiLaura v Power Auth., 982
F2d 73, 77).
Likewise, neither the section 8 statute, the LPPPA
nor their implementing regulations impose an affirmative
duty on the [*230] PHA to enforce local and State laws
concerning lead paint. Pursuant to 24 CFR 982.404, the
responsibility for maintenance rests primarily on the
property owner and not the PHA. The PHA's only rem-
edies against a recalcitrant owner are termination, sus-
pension or reduction [***14] of housing assistance pay-
ments (HAP) and termination of the HAP contract. (24
CFR 982.404 [a] [2].) Unless NYCHA is the owner of a
building, there is no statutory or regulatory provision that
requires the nonowner PHA to abate lead paint condi-
tions.
Plaintiffs also contend that notwithstanding Federal
statutes, NYCHA had a duty under common law to con-
duct a proper lead paint inspection prior to allowing ten-
ants to move in, and that having assumed that duty,
NYCHA's negligent inspection renders it liable for dam-
ages proximately caused by its failure to detect hazard-
ous lead levels in the apartment.
In Roman v Morace (supra, 1997 WL 777844, at 11-
12, 1997 US Dist LEXIS 19926) the court held, inter
alia, that the plaintiffs tenants--whose claims closely re-
sembled those of the instant plaintiffs--had no common-
law cause of action against NYCHA for violations of
State and local lead paint poisoning laws, since such
laws imposed the duties of enforcement on entities other
than NYCHA, such as the Department of Health.

[HN4] "It is settled law that a municipality cannot
[***15] be held liable for negligently exercising its gov-
ernmental functions unless there is proof of the existence
of a special duty owing to the persons injured in contrast
to a duty owed to the general public ... 'Such a duty is
found when a special relationship exists between the mu-
nicipality and an individual or class of persons, warrant-
ing the imposition of a duty to use reasonable care for
those persons' benefit ... This principle operates to im-
pose liability ... where the municipality has voluntarily
assumed a duty, the proper exercise of which was justifi-
ably relied upon by persons benefited thereby' ...
" 'Establishment of a special relationship requires
demonstration of (1) the municipality's assumption,
through promise or actions, of an affirmative duty to act
Page 186
on behalf of the victim, (2) knowledge on the part of the
municipality's agents that inaction could lead to harm,
(3) some form of direct contact between the municipal-
ity's agents and the victim, and (4) justifiable reliance by
the victim upon the municipality's [**237] affirmative
undertaking' " (Bargy v Sienkiewicz, 207 AD2d 606, 608-
609).
In the instant case, there is no proof that NYCHA
acted [***16] beyond its usual scope as a PHA, and
there is no proof that a special relationship existed
between NYCHA and plaintiffs.
[*231] Accordingly, NYCHA's motion is granted to
the extent of dismissing the complaint and any and all
claims asserted against said defendant, and the action is
severed accordingly.
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