HANLON, PHILIP F. v. HEALY, MICHAEL D. , 951 N.Y.S.2d 623 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1013
CA 12-00556
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
PHILIP F. HANLON, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL D. HEALY, DEFENDANT-APPELLANT.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (ELIZABETH
A. OLLINICK OF COUNSEL), FOR DEFENDANT-APPELLANT.
FESSENDEN, LAUMER & DEANGELO, JAMESTOWN (MARY B. SCHILLER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Chautauqua County
(James H. Dillon, J.), entered September 22, 2011 in a personal injury
action. The order granted the motion of plaintiff for partial summary
judgment on the issue of liability.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the motion is
denied.
Memorandum: Plaintiff commenced this action to recover damages
for injuries that he sustained when he fell from a roof while fighting
a fire at defendant’s property in the City of Jamestown. Defendant
appeals from an order granting plaintiff’s motion for partial summary
judgment on the issue of liability. We agree with defendant that
Supreme Court erred in granting the motion.
Plaintiff seeks to recover damages pursuant to, inter alia,
General Municipal Law § 205-a, which is a legislative abrogation of
the common-law “firefighter’s rule” that formerly barred firefighters
from recovering in negligence for injuries sustained in the
performance of their duties (see Giuffrida v Citibank Corp., 100 NY2d
72, 79). To meet his burden of establishing his entitlement to
summary judgment on the General Municipal Law § 205-a cause of action,
plaintiff was required to “identify the statute or ordinance with
which the defendant failed to comply, describe the manner in which the
firefighter was injured, and [establish] those facts from which it may
be inferred that the defendant’s negligence directly or indirectly
caused the harm to the firefighter” (Zanghi v Niagara Frontier Transp.
Commn., 85 NY2d 423, 441; see Kenavan v City of New York, 267 AD2d
353, 355, lv denied 95 NY2d 756). Inasmuch as “the Legislature
intended to broaden a firefighter’s cause of action under section
205-a to encompass situations where the alleged violation was not the
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CA 12-00556
‘direct’ cause of the injuries” (Giuffrida, 100 NY2d at 80), plaintiff
was required to establish only a “ ‘practical or reasonable
connection’ ” between the violation of the ordinance and the injury he
sustained (Mullen v Zoebe, Inc., 86 NY2d 135, 142; see Zanghi, 85 NY2d
at 441; Donna Prince L. v Waters, 48 AD3d 1137, 1139).
Here, plaintiff alleges that defendant violated four sections of
the National Fire Prevention Association (NFPA) Fire Code, as adopted
in the NFPA Life Safety Code §§ 2.1, 2.2, that are applicable to
defendant’s property pursuant to Jamestown City Code § 140-2. Those
NFPA Fire Code sections prohibit connecting an ungrounded extension
cord to a grounded appliance (§ 11.1.7.4), running an extension cord
under a door (§ 11.1.7.5), using a damaged extension cord
(§ 11.1.7.3), and connecting the extension cord to an appliance that
exceeds the maximum amperage for that extension cord (§ 11.1.7.2). We
agree with defendant that plaintiff failed to meet his burden with
respect to two of the four sections, i.e., section 11.1.7.4 because
plaintiff failed to establish that the space heater that allegedly
caused the fire was a grounded appliance, and section 11.1.7.5 because
he failed to establish that running the cord under the door caused the
fire to occur. Even assuming, arguendo, that plaintiff met his
initial burden with respect to the four Fire Code sections, we
conclude that defendant raised a triable issue of fact whether there
is a “ ‘practical or reasonable connection’ ” between those Fire Code
violations and plaintiff’s injury (Mullen, 86 NY2d at 142).
We have considered defendant’s remaining contentions and conclude
that they are without merit, or are academic in light of our
determination.
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court