Thomas Cotter et al., Appellants, v Pal & Lee Inc. et al., Respondents, et al., Defendants.
Supreme Court, Appellate Division, First Department, New York
July 21, 2011
928 NYS2d 262
Plaintiffs commenced this personal injury action against Pal and Faiz on May 4, 2006, alleging that defendants’ violation of various sections of the Administrative Code of the City of New York resulted in a hole in the floor, accumulated debris and other unsafe conditions.1 They claim that these violations directly or indirectly caused plaintiffs injuries and that he is therefore entitled to recover under
Faiz testified at deposition that he leased the premises in 1997, and that both he and the owners have made repairs since
Faiz further testified that the restaurant had been cleaned three days before the fire in anticipation of an inspection by the City Health Department. He testified that the restaurant was inspected routinely by the Health Department, twice annually by the New York City Fire Department (FDNY), and intermittently by the Building Department, and that no violations had been issued by the Building Department. Faiz further testified that he did not observe any holes or cracks in the floor when he closed the restaurant at 1:00 a.m. on the night of the fire.
Plaintiff testified at deposition that at approximately 2:00 a.m., his station responded to a report of a fire at Faiz‘s restaurant. When he arrived at the fire, he observed the spray-painted “X” on the exterior of the building, which he understood to mean that the building had experienced a prior fire, the roof was “open,” and that he should be on his “A” game. He testified that he and two other firefighters entered the building carrying a hose spraying “tons of water.”
Plaintiff testified that he could not see due to the heavy smoke and had to climb over “debris.” He further testified that his foot became lodged in something that “just wasn‘t part of the floor.” Although he characterized the condition as a hole, he admitted that he did not see any holes and did not “know for a fact” what trapped his foot. Plaintiff said he was “sure” that some of the obstacles he encountered were restaurant “fixtures” strewn “all over the place” by the hose water, which had enough velocity to “move a couch” or “blow a hole in a tin roof.”
The two firefighters who accompanied plaintiff were deposed and testified that they too could not see due to the heavy smoke, but that there were tables, chairs, and booths knocked down. One of them also fell, but he was uncertain as to what caused him to fall. After approximately 10 minutes in the building, the men were called out due to the heavy fire condition, and efforts to extinguish the fire continued from outside the building.
Post-fire inspection reports were prepared by the FDNY Fire Chief who was on duty the night of the fire, a fire marshal, and the fire inspector hired by Faiz‘s insurer. The inspectors did not report holes in the area of the restaurant where the firefighters were located. The reports did not agree on the point of origination or cause of the fire.
Following discovery, Pal and Faiz moved for summary judgment dismissing the complaint on grounds that they did not violate any code section or statute with a reasonable connection to Cotter‘s claimed injuries, and that plaintiffs’ section 205-a claim is speculative. In opposition, plaintiffs offered, inter alia, the report of their expert who opined that defendants failed to comply with Administrative Code, Building Code and Housing Maintenance Code provisions, as alleged by the pleadings, and that the violations constituted a “direct cause” of Cotter‘s injuries. However, the expert relied only on the documents presented to the court and did not personally inspect the premises.
The motion court granted defendants’ summary judgment motions, concluding that plaintiffs failed to “make a prima facie case of negligence under [
Plaintiffs appeal on the grounds that the motion court erroneously applied the common-law standard of causation rather than the statutory standard, and that there are material questions of fact as to whether defendants violated provisions of the Administrative Code. For the reasons set forth below, we affirm the motion court‘s summary judgment dismissal.
In this case, defendants met their initial burden by presenting deposition testimony, post-fire inspection reports, and other evidence indicating that there were no violations, specifically holes in the floor and accumulated debris, that directly caused plaintiff‘s injuries, or that indirectly caused plaintiff‘s injuries by increasing the inherent dangers of firefighting (see e.g. Downey, 48 AD3d at 619; Zvinys, 25 AD3d at 359-360). Plaintiffs failed to rebut this showing.
Plaintiffs’ assertion that a hole in the floor directly caused the injuries is pure conjecture. Plaintiff conceded that he could not see the floor and does not know what trapped his foot. The firefighters who entered the building with him were similarly unable to describe the condition of the floor. Plaintiffs’ allegation that defendants allowed debris to accumulate, causing him to trip and fall, is speculative. By his own admission, plaintiff cannot say that the debris did not consist of those items normally found in a restaurant, which, rather than being negligently placed by defendants, had been knocked down by the force of the spray from the fire hose employed in suppressing the fire.
Plaintiffs’ assertion that the “X” marked on the facade is evidence of code violations is wholly unsupported by the record. The FDNY Chief testified that such symbols may not be accurate, the buildings are not reinspected, and indeed that the symbol was incorrect in this case since the building had been occupied for eight years.
There is no record evidence of any violations for unsealed openings, lack of requisite fireproofing, and lack of fire-detection equipment, or lack of extinguishment or suppression systems issued against the building, and plaintiffs’ expert did not personally inspect the premises for violations (see e.g. Zvinys, 25 AD3d at 359-360). However, even were we to accept that such violations did exist, plaintiffs’ claim that they exacerbated the smoke condition and spread of the fire, indirectly causing plaintiff injury, is speculative.
We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.