Paolicelli v. Fieldbridge Assocs., LLC

• Decision Date: 20 August 2014
• Court: New York Supreme Court — Appellate Division
• Parties: Christopher PAOLICELLI, respondent, v. FIELDBRIDGE ASSOCIATES, LLC, appellant.

120 A.D.3d 643
992 N.Y.S.2d 60
2014 N.Y. Slip Op. 05849

Christopher PAOLICELLI, respondent,
v.
FIELDBRIDGE ASSOCIATES, LLC, appellant.

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

Aug. 20, 2014.

[992 N.Y.S.2d 63]

Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Reed M. Podell of counsel) and Newman Myers Kreines Gross Harris, P.C., New, N.Y. (Olivia M. Gross of counsel), for appellant (one brief filed).

Levine & Gilbert, New York, N.Y. (Harvey A. Levine and Richard Gilbert of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated September 5, 2012, which denied its motion pursuant to CPLR 3211(a)(7) to dismiss the complaint and its application pursuant to CPLR 3211(c) to convert the motion into one for summary judgment dismissing the complaint.

ORDERED that on the Court's own motion, the appeal from so much of the order as denied the defendant's application pursuant to CPLR 3211(c) to convert its motion from a motion pursuant to CPLR 3211(a)(7) to a motion for summary judgment dismissing the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted ( seeCPLR 5701); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for common-law negligence and the cause of action pursuant to General Municipal Law § 205–a to the extent predicated on a violation of Multiple Residence Law § 173, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, a lieutenant in the New York City Fire Department, was injured on January 3, 2008, while fighting a fire in a high-rise apartment building in Brooklyn that is part of the Ebbets Field apartment complex, and is owned by the defendant, Fieldbridge Associates, LLC. The fire started in an apartment on the 14th floor of the building, after a child allegedly lit paper material on the kitchen stove. The child's mother had earlier lit two burners on the stove to heat the apartment.

The plaintiff commenced this action to recover damages for his injuries. In addition to a cause of action to recover damages for common-law negligence, he asserted a cause of action to recover damages pursuant to General Municipal Law § 205–a, predicated on violations of Multiple Dwelling Law § 79, Multiple Residence Law § 173, and Administrative Code of the City of New York § 27–2029, all of which require, as relevant here, that, between October 1 and May 31, a

[992 N.Y.S.2d 64]

landlord provide heat sufficient to maintain a temperature of 68 degrees Fahrenheit between the hours of 6 a.m. and 10 p.m. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground, inter alia, that the statutes and Code provision cited were not proper predicates for the General Municipal Law § 205–a cause of action.

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

General Municipal Law § 205–a affords firefighters and their survivors a statutory cause of action for line-of-duty injuries resulting from negligent noncompliance with the requirements of any governmental statutes, ordinances, rules, orders, and requirements ( see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 77, 760 N.Y.S.2d 397, 790 N.E.2d 772; Galapo v. City of New York, 95 N.Y.2d 568, 573, ...