Bolte v. City of N.Y.

Decision Date06 July 2015
Docket NumberNo. 302377/09.,302377/09.
Citation20 N.Y.S.3d 291 (Table)
Parties Dana C. BOLTE and Linda Bolte, Plaintiff(s), v. The CITY OF NEW YORK, NHS Community Development Corp., Central Development Corp., Catherine Stovall, Ashart Majid and Luis Rojas, Defendant(s).
CourtNew York Supreme Court

Sullivan Papain Block McGrath & Cannavo, PC, for plaintiffs.

New York City Law Department, for the City.

Baary, McTiernan & Moore, PC, for NHS.

Ahmuty, Demers & McManus, for Central.

Penino & Moynihan, LLP, for Rojas.

Law Office of Lori D. Fishman, for Danois.

MITCHELL J. DANZIGER, J.

In the action premised on common law negligence and alleged violations of GML § 205–a, defendant NHS COMMUNITY DEVELOPMENT CORP. (NHS) moves seeking an order granting it summary judgment thereby dismissing the complaint and any cross-claims asserted against it on grounds that plaintiffs' common law negligence claims are barred by the firefighter rule. Additionally, NHS avers that because NHS neither owned nor controlled the premises where plaintiff DANA C. BOLTE (Dana) had his alleged accident, at the time of this accident, plaintiffs' claims pursuant to GML 205–a must also be dismissed. Plaintiffs oppose NHS' motion asserting that insofar as NHS completely rehabilitated the premises adjacent to which Dana had his accident prior to his accident, and in so doing, failed to comply with the then applicable building code, NHS is liable under the common law because GOL § 11–106 abrogated the bar against common law negligence claims against NHS. Moreover, plaintiffs argue that NHS is similarly liable pursuant to GML § 205–a because the amendment to the foregoing statute in 1996 does not preclude liability solely because the alleged tortfeasor neither owned nor controlled the premises upon which an accident occurred at the time of the same. Defendant CENTRAL DEVELOPMENT CORP. (Central) also opposes NHS' motion to the limited extent of asking this Court to deny the same if Central's motion for identical relief is denied.

Central moves seeking an order granting it summary judgment as to the complaint and all cross-claims asserted against it. Like NHS, Central contends that insofar as it neither owned nor controlled the premises upon which Dana purports to have had his accident at the time of the accident, Central cannot be liable pursuant to GML 205–a. With regard to the common law claims asserted against it, Central argues that insofar as its connection to the premises alleged was as NHS' construction contractor, it can only be liable if, inter alia, it created the condition alleged to have caused Dana's accident—here, inter alia, a parapet of insufficient heigh. Because, the work performed by Central to the parapet did not make it more dangerous, it argues that summary judgment on the common law claims asserted is, thus, warranted. Plaintiffs oppose Central's motion only to the extent it seeks summary judgment as to the claims pursuant to GML § 205–a. Specifically, plaintiffs, as averred in opposition to NHS's motion, submit that as NHS' construction contractor, Central failed to extend the height of the parapet wall near the location of Dana's accident, violating the building code, and thus, violating GML § 205–a. As asserted in opposition to the NHS' motion, plaintiffs contend that because of the amendment to GML § 205–a in 1996, that Central neither owned nor controlled the premises at issue at the time of the accident does not warrant summary judgment in its favor.

Defendant LUIS ROJAS (Rojas) moves seeking an order granting him summary judgment with respect to the complaint and all cross-claims asserted against him. With respect to the common law claims of negligence asserted against him, Rojas contends that insofar as the accident alleged did not happen on Rojas' property he cannot be liable to the plaintiffs. Moreover, with regard to the claims pursuant to GML § 205–a, Rojas contends that insofar as NHS acquired a certificate of occupancy after the rehabilitation was performed and before Rojas acquired the premises, such certificate indicates that there were no violations of the building code, and more specifically, the ones alleged by plaintiffs. Rojas also contends that summary judgment is also warranted because even if his premises was in violation of the building code provisions alleged, it is clear that those violations did not cause Dana's accident. Plaintiffs oppose Rojas' motion averring that while the instant accident did not occur on Rojas' property he is nevertheless liable under the common law because the failure to provide a parapet of adequate height created an optical illusion which caused Dana's accident. Plaintiffs also contend that insofar as the building code violations violated by Rojas caused Dana's accident Rojas is liable thereunder and the issuance of a certificate of occupancy does not diminish Rojas' liability. Central opposes Rojas' motion to the limited extent of asking this Court to deny the same if Central's motion for identical relief is denied.

Defendant THE CITY OF NEW YORK (the City) moves seeking an order granting it summary judgment on grounds that the common law claims asserted against it are absolutely barred by the firefighter rule insofar as Dana's accident arose while he was on duty and was the result of a risk inherent to his employment as a firefighter. With respect to the claims pursuant to GML § 205–a, the City asserts that summary judgment is warranted because the predicate building code violations asserted by plaintiffs do not apply to the City as it did not own the premises at the time of Dana's accident. Plaintiffs, while conceding that no liability exists against the City, nevertheless opposes the City's motion on grounds that with respect to the GML § 205–a claims, the City fails to make the appropriate arguments—namely that when it owned the premises in question the applicable building codes did not, inter alia, require a taller parapet, such that the City did not violate the the predicate statutes.

Third-party defendant DANOIS ARCHITECTS, P.C. (Danois) moves seeking an order dismissing the third-party claims asserted against it by Central for contribution and common law indemnification on grounds that it owed no duty to plaintiffs as the architect hired by NHS to create the plans followed by Central in rehabilitating the premises at issue. More specifically, Danois asserts that as a contractor hired by NHS, it can only be liable to plaintiffs and thus to Central, if Danois, inter alia, caused or created the condition alleged to have caused Dana's injuries—which Danois avers did not occur. With regard to the GML § 205–a claims, Danois asserts that it cannot be liable since the work it performed, concluded long before Dana's alleged accident, such that Danois cannot be liable. Plaintiffs oppose Danois' motion asserting that in failing to design plans that were compliant with the then applicable building code, Danois created the condition alleged to have caused Dana's accident, such that it is liable for common law negligence. With regard to the GML § 205–a claims, plaintiffs again aver that notwithstanding that Danois completed its work long before the accident alleged, because of the amendment to GML § 205–a in 1996, liability lies even if there was no ownership or control of subject premises at the time of the accident alleged. Central opposes Danois motion to the extent of having the court deny the same if it fails to grant Central's motion.

For the reasons that follow hereinafter the motions by NHS, Central, Rojas, and Danois are granted, in part, and the motion by the City is granted in its entirety.

The instant action is for alleged personal injuries sustained by Dana on February 13, 2009. The complaints1 allege as follows. On February 9, 2009, Dana, a firefighter employed by the City, while discharging his duties as a firefighter, fell into an open and unguarded shaft located on the roofs of premises located at 677(677) and 679 Eagle Avenue (679), Bronx, NY. It is further alleged, in pertinent part, that at the time of the aforementioned accident, 677 was owned by Rojas and 679 was owned by defendants CATHERINE STOVALL (Stovall) and ASHART MAJID (Majid), that prior to the date of the accident, the City and NHS owned 677, who along with Central performed construction at 677. Plaintiffs allege that in failing to cover and/or erect a guard rail around the shaft, defendants were negligent, such negligence causing Dana's accident. Plaintiffs further allege that the foregoing failures also constitute violations of Sections 27–127, 7–128, 27–334, and 27–2005 the Administrative Code of the City of New York, such that defendants also violated GML § 205–a. Plaintiff LINDA BOLTE (Linda), as Dana's wife, asserts a derivative loss of consortium claim. Within its third-party complaint, Central asserts two causes of action—one for contribution and another for common law indemnification—against Danois asserting that insofar as Danois was engaged to ensure that the construction performed by Central was complaint with all relevant codes, should Central be found liable to plaintiffs, then Danois is liable to Central.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 A.D.3d 637, 638, 792 N.Y.S.2d 177 [2d Dept 2005] ; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634, 757 N.Y.S.2d 594 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather...

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