Anderson v. Columbari

• Decision Date: 07 December 2010
• Citation: 913 N.Y.S.2d 687,79 A.D.3d 679
• Parties: Thomas ANDERSON, respondent, v. Gino COLUMBARI, appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 687
79 A.D.3d 679

Thomas ANDERSON, respondent,
v.
Gino COLUMBARI, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 7, 2010.

913 N.Y.S.2d 687

Joseph A. Maria, P.C., White Plains, N.Y. (Edward A. Frey of counsel), for appellant.

Richard M. Kenny, New York, N.Y. (Dara L. Warren of counsel), for respondent.

PETER B. SKELOS, J.P., STEVEN W. FISHER, FRED T. SANTUCCI, and JOHN M. LEVENTHAL, JJ.

79 A.D.3d 679

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated February 11, 2010, which denied his, in effect, renewed motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's, in effect, renewed motion for summary judgment dismissing the complaint is granted.

913 N.Y.S.2d 688, 79 A.D.3d 680

The plaintiff, a New York City firefighter, allegedly was injured while responding to a fire at the defendant's premises. According to the fire incident report, the fire originated in the basement, which was occupied at the time by the defendant's wife, and was ignited by a cigarette in bedding material. The plaintiff testified at his deposition that, intending to go down to the basement to shut off the utilities, he arrived at the top of a staircase between the first floor and the basement and that visibility was poor. He could not remember where he placed his free hand when he got to the top of the stairs or as he started to descend the stairway. The plaintiff testified that as his right foot landed on a step, he felt as though the step collapsed. The plaintiff, falling forward, did not do anything to attempt to regain his balance, but stuck his arm out to try to break his fall and came to a stop when his shoulder landed on the ground.

The plaintiff commenced this action seeking to recover damages for personal injuries pursuant to General Municipal Law § 205-a, predicated upon alleged violations of the Administrative Code of the City of New York (hereinafter Administrative Code), and under a theory of common-law negligence. The defendant moved for summary judgment dismissing the complaint. In an order dated September 28, 2009, the Supreme Court, inter alia, denied the defendant's motion for summary judgment with leave to renew upon submission of a so-ordered stipulation. In an order dated February 11, 2010, the Supreme Court denied the defendant's, in effect, renewed motion for summary judgment dismissing the complaint. The defendant appeals from that order. We reverse.

General Municipal Law § 205-a establishes a statutory cause of action for firefighters who suffer injuries in the line of duty "as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the ... city governments" (General Municipal Law § 205-a[1]; see Cusumano v. City of New York, 15 N.Y.3d 319, 910 N.Y.S.2d 410, 937 N.E.2d 74). On a motion for summary judgment, the defendant bears the initial...