Shelton v. City of New York

Dec 31, 1998
Versions:256 A.D.2d 611
682 N.Y.S.2d 890
683 N.Y.S.2d 123
1998 N.Y. App. Div. LEXIS 14102

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme *612Court, Queens County (Polizzi, J.), dated December 24, 1997, as, upon reargument, adhered to those portions of a prior determination of the same court, dated May 14, 1997, which (1) granted the cross motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it, (2) granted that branch of the motion of the defendant Mindy Trepel which was for summary judgment dismissing the cause of action to recover damages pursuant to General Municipal Law § 205-a, and (3) denied their cross motion for leave to amend their bill of particulars and the complaint. A cross appeal by the defendant Mindy Trepel from the order dated May 14, 1997 (see, Shelton v City of New York, 256 AD2d 611 [decided herewith]), brings up for review so much of the order dated December 24, 1997, as, upon reargument, adhered to that portion of the order dated May 14, 1997, denying the branch of her motion which was for summary judgment dismissing the common-law negligence causes of action insofar as asserted against her (CPLR 5517 [b]).

Ordered that the order is modified by (1) deleting the provision thereof adhering to so much of the order dated May 14, 1997, as granted that branch of the motion of the defendant Mindy Trepel which was for summary judgment dismissing the cause of action to recover damages pursuant to General Municipal Law § 205-a, and substituting therefor a provision denying that branch of the motion, and (2) deleting the provision thereof adhering to so much of the order dated May 14, 1997, as denied that branch of the plaintiffs’ cross motion which was for leave to amend their bill of particulars and the complaint to assert a cause of action to recover damages pursuant to General Municipal Law § 205-a, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from and reviewed, without costs or disbursements.

The court properly granted the cross motion of the City of New York for summary judgment dismissing the plaintiffs’ common-law cause of action insofar as asserted against the defendant City of New York since the plaintiff, a firefighter, was injured while acting in furtherance of a specific fire-fighting function which exposed him to a heightened risk of sustaining the particular injury (see, Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 439; Byrnes v City of New York, 249 AD2d 352; Schembri v City of New York, 240 AD2d 722).

Further, the court providently exercised its discretion in denying that branch of the plaintiffs’ cross motion which was for leave to amend the bill of particulars and the complaint to *613assert a cause of action against the City under General Municipal Law § 205-a. The internal Fire Department rule which the plaintiffs claim was violated cannot serve as a predicate for liability under General Municipal Law § 205-a since it neither imposes a clear legal duty nor constitutes part of a well-developed body of law and regulation with positive commands that mandate the performance or nonperformance of specific acts (see, Desmond v City of New York, 88 NY2d 455, 464; Von Ancken v City of New York, 245 AD2d 286).

However, the court improvidently exercised its discretion in denying that branch of the plaintiffs’ cross motion which was for leave to amend their bill of particulars and the complaint to assert a cause of action to recover damages pursuant to General Municipal Law § 205-a against the defendant Mindy Trepel (see, Banfi Prods. Corp. v Gentile, 236 AD2d 348; see also, Roberts v Alexander’s, Inc., 224 AD2d 677, 678). The court should have allowed the plaintiffs to amend their bill of particulars and the complaint to identify the statutes or ordinances which Mindy Trepel allegedly violated, and should not have granted that branch of Trepel’s motion which was to dismiss the plaintiffs’ cause of action to recover damages pursuant to General Municipal Law § 205-a on the ground that the plaintiffs failed to identify such statutes or ordinances.

The plaintiffs’ common-law cause of action against Mindy Trepel is viable in light of the 1996 enactment of General Obligations Law § 11-106 (L 1996, ch 703) (see, Gregory v Armon, 240 AD2d 703; Carlson v Berg, 240 AD2d 692; Jones v Centerearch Assocs., 235 AD2d 397; Sikes v Reliance Fed. Sav., 234 AD2d 446; Gibbons v Ostrow, 234 AD2d 415).

The parties’ remaining contentions are without merit. Bracken, J. P., Copertino, Thompson and McGinity, JJ., concur.