Mulham v NYC

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10/23/13 MULHAM v. City of New York, 2012 NY Slip Op 31545 - NY: Supreme Court, Richmond 2012 - Google Scholar

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2012 NY Slip Op 31545(U)

DONALD MULHAM, Plaintiff,

v.

THE CITY OF NEW YORK, Defendant.

101754/09, Motion No. 081-001.

May 31, 2012.

Supreme Court, Richmond County.

DECISION AND ORDER

THOMAS P. ALIOTTA, Judge.

Upon the foregoing papers, defendants motion for sum maryjudgm ent and dismissal of the complaint is granted.

The within action was commenced to recover damages for personal injuries allegedly sustained by New York CityPolice Officer Donald Mulham (hereinafter "plaintiff") when, on September 5, 2008, during the course of his

employment, he chased a s uspect into a vacant lot in a wooded area of Staten Island. When plaintiff had gone about

50-100 feet into the lot, he encountered a "five by five [foot]... wooden s tructure... made of a lot of different things ,

[including] wood, sticks, fabric, [and] coca cola crates ...". Believing that the sus pect was hiding within, plaintiff jumped

onto a piece of plywood which appeared to the officer "like a platform of some sort to hold the s tructure". When he

landed, however, plaintiff fell through the plywood onto the ground below, allegedly sustaining injuries to his knee and

shoulder (see Defendant's Exhibit "D", pp 21-25).

In his Notice of Claim dated February 24, 2009 (see Defendant's Exhibit "A"), plaintiff asserts causes of action against

the City under General Municipal Law 205-e predicated upon the City's alleged violation of (1) New York City Health

Code 153.19; (2) Administrative Code of the City of New York (hereinafter "Administrative Code") 27-127, 27-128;and (3) Labor Law 27-a (3)(a) (1), as well as common-law negligence. Plaintiff has since conceded that the cause o

action based upon common-law negligence mus t be dism iss ed, citing Wadler v City of New York (14 NY3d 192; see

General Obligations Law 11-106 [added L 1996, ch 703; eff October 9, 1996]).

With regard to those cause(s) of action brought pursuant to General Municipal Law 205-e, a plaintiff-police officer ma

establish a prima face case by demonstrating that he or she was injured "as a result of [the] neglect, omission, willful

culpable negligence" of the named defendant "in failing to comply with the requirements of any of the statutes,

ordinances, rules , orders and requirements of the federal, state, county, village, town or city governments" (General

Municipal Law 205-e [1]). Moreover, "it is not necessary for the plaintiff to prove such [prior] notice as would be

required under a common-law theory of negligence" (Lustenring v 98-100 Realty, 1 AD3d 574, 578). Rather, a plaintiff

need only establish that "the circums tances surrounding the failure to comply [with one of the above provisions] indicathat it was a result of ... neglect, omis sion, willful or culpable negligence on the defendant's part" (Terranova v New Yo

City Tr. Auth., 49 AD3d 10, 17 [internal quotation marks omitted]).

Here, plaintiff apparently has abandoned those General Municipal Law (hereinafter "GML") causes of action which we

predicated on the alleged violation of Administrative Code 27-127 and 27-128. In any event, these Code s ections

were repealed effective July 1, 2008 and, thus, were no longer in effect at the time of plaintiff's injury. Hence, any such

causes of action would be subject to dismissal.

Nevertheless, plaintiff maintains in a sixth Bill of Particulars, dated January 9, 2012, that he should be permitted to

pursue a GML 205-e cause of action predicated on the alleged violation of Administrative Code 28-301.1 (added L
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33/2007; eff July 1, 2008) which, it is claimed, replaced the previously cited Code provisions. The Court dis agrees. Th

supplemental Bill of Particulars was not submitted until afterdefendant moved to dismiss and was obviously tendere

in the light thereof. In addition, it was submitted without leave of Court, some two months after the filing of the note of

iss ue. As s uch, plaintiff's s ixth Bill of Particulars should be considered a nullity and the matter included therein need n

be addressed (see Miki v 335 Madison Ave., LLC, 93 AD3d 407, affg30 Misc3d 1214A [Sup Ct New York Co 2011];

Salgado v Town Sports Intl., 73 AD3d 898, 899).

However, even if this Court were to entertain plaintiff's argument premis ed upon an alleged violation of Administrative

Code 28-301.1, the pictures submitted by plaintiff depicting the ramshackle pile of debris where the accident alleged

occurred (see Plaintiff's Exhibit "B", "F") can hardly be equated wi th the types of "buildings ... and ... structures" to which

this section of the Administrative Code or any of its alleged predecess ors were intended to apply. Neither has plaintiff

established that the City had actual or cons tructive notice of the alleged hazardous condition of the lot in question (see

Rabinowitz v City of New York, 286 AD2d 724, 725, [jury verdict in favor of police officer under GML 205-e based on th

City's alleged failure to maintain its parking lot in accordance with the relevant Administrative Code provisions reverse

citing, e.g., plaintiff's failure to prove its actual or constructive notice of the purported hazardous condition], lv denied98

NY2d 615).

People v. Fox (3 AD3d 577), in which the court was forced to confront the meaning of the term "building" in the context o

a prosecution for arson in the second degree under Penal Law 150.15, is readily distinguis hable on its facts and

does not constitute a contrary controlling precedent.

Likewise the Court rejects as actionable plaintiff's claims which are predicated upon an alleged violation of New York

City Health Code 153.19. To the extent relevant, that ordinance provides "[t]he owner, agent, lessee, tenant, occupan

or other person who manages or controls a building or lot shall be jointly and severally respons ible 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, li tter, or other offensive matter or accumulation of water". This section if it appl ied at all , could

only be in the context of the City's alleged failure to control the proper disposal of, e.g., refuse, on its vacant lot, and

regulations affecting mere sanitation have never been held to be the type of governmental mandate whose violation

would s upport a cause of action under GML 205-e.

Although, as written, GML 205-e (1) seemingly creates a s tatutory cause of action which appears lim itless purporting

to impos e liabil ity whenever an injury results from the violation ofanyof the "rules, orders and requirements of ... any

and all of [the] departments, divisions and bureaus" ofanygovernmental entity, "it is well settled that the statute canno

reasonably be applied literally in accordance with [this] broad language. Rather, as a prerequisite to recovery, a police

officer must [be able to] demonstrate [the occurrence of an] injury resulting from [the] negligent noncompliance wi th a

requirement found in a well-developed body of law and regulation that imposes clear duties" (Galapo v City of New Yo

95 NY2d 568, 574 [internal citations and quotation marks om itted]); see Desmond v City of New York, 88 NY2d 455,

463-464 [as an ameliorative provision, GML 205-e "must be cons trued and applied in light of [its] specific history and

purpose as well as [its] language"]). In this regard, it is pertinent to note that the cases sus taining a recovery under

205-e are virtually unanimous in their reliance upon the violation of statutes relating to some form ofsafety

consideration (see e.g., Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423), and not, as here, a sanitationprovision (see Galapo v City of New York, 95 NY2d at 576, [holding that GML 205-e "was not intended to allow suits .

for `breaches of any and all governmental pronouncements of whatever type', citing Desmond v City of New York, 88

NY2d at 464]; Rabinowitz v City of New York, 286 AD2d at 725 [Adminis trative Code 16-118, entitled "Littering

prohibited", determined to be an insufficient predicate for recovery under GML 205-e]; see also Shepard v Werwaiss ,

947 FSupp 71). This last case is particularly instructive, for in it, the Federal District Court for the Eastern Dis trict of Ne

York ruled that a violation of 153.01 of New York City's Health Code (also entitled "Littering prohibited") did not

constitute a proper predicate for a GML 205-e claim, and in a footnote at page 75 (n 6), specifically stated that a re-

consideration of plaintiff's claim based upon an alleged violation of 153.19 of the Health Code (the sam e section on

which plaintiff purports to rely) would not alter the result.
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Finally, as for defendant's alleged violation of Labor Law 27-a, it is familiar law that this section, enacted express ly to

"provide individuals working in the public sector with the sam e or greater workplace protections provided to employee

in the private sector under OSHA" (Hartnett v. New York City Tr. Auth., 86 NY2d 438, 442), requires a public sector

employer to provide its employees with workplaces "that are free from recognized hazards likely to cause death or

serious physical injury and which wil l reasonably and adequately protect the[] lives, safety and health of its em ployees

(id. at 443). Hence, there can be no doubt that a violation of Labor Law 27-a is legally sufficient to serve as the basis

for a claim by a police officer under GML 205-e (see generallyFisher v. City of New York, 48 AD3d 303 [construing th

nearly identical section of the GML ( 205-a) which applies to firefighters injured in the line of duty]). However, even the

mos t expansive interpretation consistent with the over-all goals of GML 205-e and Labor Law 27-a would not equaplaintiff's injury in a vacant lot littered with debris a "workplace" injury caused by the type of "recognized hazard"

contemplated by Labor Law 27-a (3) (see Norman v. City of New York, 60 AD3d 830, 832; see also Sciangula v City o

New York, 250 AD2d 833).

Accordingly, it is hereby

ORDERED that defendant's motion for sum mary judgment is granted and the complaint dismiss ed; and it is further

ORDERED that the Clerk enter judgment in accordance herewith.

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Mulham v NYC