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MARTINEZ v. FEDERAL HOME LOAN MORTG. CORP.

June 28, 1996

RALPH and SOPHIA MARTINEZ, Plaintiffs, against FEDERAL HOME LOAN MORTGAGE CORPORATION, KEVIN J. COOKE and CAISI MANAGEMENT CO., INC., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 Defendants Federal Home Loan Mortgage Corporation (hereinafter "Freddie Mac") and Kevin J. Cooke and Caisi Management Co., Inc. (collectively "Caisi") move for summary judgment pursuant to Fed. R. Civ. P. 56 (c). Defendants contend that the first claim of the complaint is barred by the "firefighter's rule" and that the second claim fails because section 205-a of the General Municipal Law ("§ 205-a") does not apply to the facts of this case. For the reasons set forth below, the motion is granted with respect to the first claim, but denied with respect to the second claim.

 BACKGROUND

 On December 18, 1992, defendant Freddie Mac owned and defendant Caisi managed the premises located at 1068 Ward Avenue, Bronx, New York ("the premises"). On September 2, 1992, Caisi inspected the premises to determine, in part, if there were any safety hazards or concerns, such as defective lighting or missing or broken steps. See Deposition of Edward Sweeney, Caisi's field supervisor ("Sweeney Dep."), August 29, 1995, at 15, 24. Caisi's inspection report, September 2, 1992, indicates that certain steps needed to be replaced, but does not identify those steps. See Plaintiffs' Memorandum of Law in Opposition to Defendant Federal Home Loan Mortgage Corporation's Motion for Summary Judgment ("Pls.' Mem."), Ex. D; Deposition of Vanessa Clarke, Freddie Mac's property management specialist, August 10, 1995, at 50-51 Caisi sent a copy of this report to Freddie Mac, thereby notifying Freddie Mac of the problem. See Sweeney Dep. at 50. A letter from Freddie Mac to Caisi, October 26, 1992, establishes that Freddie Mac also knew that the lobby area did not receive sufficient lighting during the day. See Pls.' Mem. P 3.

 On December 18, 1992, plaintiff Ralph Martinez ("plaintiff") was a firefighter with the New York City Fire Department. See Affidavit of Plaintiff Ralph Martinez ("Pl.'s Aff."), March 19, 1996, P 2. Plaintiff was trained at the Fire Department Academy in basic fire fighting skills, including entering buildings without lighting and proceeding up staircases in dark conditions. See Deposition of Plaintiff Ralph Martinez ("Martinez Dep."), August 1, 1995, at 7-8, 134.

 At approximately four o'clock in the afternoon on December 18, 1992, plaintiff's Ladder Company 54 responded to a fire at the premises. Id. at 18. When plaintiff arrived at the premises, he put on his equipment, which consisted of a helmet, a turnout coat, a face mask, rubber boots, an oxygen tank, a neck guard, a fire extinguisher and a six foot hook. This equipment weighed approximately 100 to 125 pounds. Id. at 23-24, 119.

 Plaintiff then proceeded through the vestibule in the direction of the smoke and approached a staircase. Id. at 35-36. Some natural light came from the outside into the vestibule area, but there was no artificial lighting in the vestibule. Id. at 41, 119. Plaintiff alleges that there was a broken emergency light facing the staircase, a "box with some wires hanging out of it." Id. at 121-22. While there was smoke in the area, it was not too thick, but it was hazy. When standing at the bottom of the staircase, plaintiff was unable to see beyond the landing. Id. at 134. The steps of the staircase were "fairly visible," but "it was pretty dark in there." Id. at 41. Plaintiff's face mask limited his peripheral vision and slightly impaired his vision straight ahead. Id. at 132-133.

 Eventually, plaintiff reached the top of the staircase and placed his left foot on the top step. As he shifted his weight to his left foot and lifted his right foot, plaintiff slipped off the top step, lost his balance, and fell backwards down the stairs. Id. at 47-48; Pl.'s Aff. P 8. After his fall, plaintiff looked at where he fell and observed that the step was broken, "the lip was off it, it was worn away." Martinez Dep. at 65. The photographs of the step indicate that it was in a deteriorated and defective condition. See Photographs of step annexed as part of Ex. A of Pls.' Mem. As a result of his fall, plaintiff sustained a knee injury that required two surgeries. Thereafter, plaintiff retired from the Fire Department. Id. P 13.

 On November 13, 1995, Martinez and his wife Sophia filed a second amended complaint against Freddie Mac and Caisi. The first claim asserts that defendants were negligent in failing to properly maintain their premises. Plaintiff alleges that his fall and subsequent injury were caused, in part, by inadequate lighting in the vestibule and stair area, and by the defective condition of the steps.

 The second claim is based on General Municipal Law § 205-a, which permits firefighters injured in the line of duty to sue property owners whose violations of local, state, or federal laws result in a failure to maintain the premises in a safe condition for firefighters. N.Y. Gen. Mun. Law § 205-a (McKinney 1986 & Supp. 1996). Plaintiff alleges that his injuries were caused by defendants' violation of: Multiple Dwelling Law of the State of New York (hereinafter "MDL") §§ 37 ("Artificial hall lighting"), 52 ("Stairs"), and 78 ("Repairs") Administrative Code of the City of New York (hereinafter "Administrative Code") §§ 27-2005 ("Duties of owner"), 27-2038 (Electric lighting in public parts of dwelling) and 27-2039 (Lighting to be provided at night); Official Compilation of Codes, Rules and Regulations of the State of New York (hereinafter "NYCRR") tit. 10, §§ 21.19(e) ("Lighting for public halls and stairways"), and 21.21(e) ("Safety").

 The third claim alleges that by virtue of her husband's accident and injury, Sophia Martinez was deprived of spousal services, society and consortium. Plaintiffs claim $ 2,000,000.00 in damages on the first two claims and $ 500,000.00 on the third.

 On January 22, 1996, defendants moved for summary judgment on the first claim, contending that because plaintiff sustained his injury in the performance of his duties as a firefighter, his common law negligence claim is barred by the "firefighter's rule." Defendants also moved for summary judgment on the second claim on the ground that § 205-a does not apply to the facts of this case. First, citing St. Jacques v. City of New York, 215 A.D.2d 75, 633 N.Y.S.2d 97 (1st Dep't 1995), aff'd on other grounds, 88 N.Y.2d 920, 646 N.Y.S.2d 787, 669 N.E.2d 1109, 1996 N.Y. LEXIS 1173, 1996 WL 303060 (N.Y. Ct. App. June 6, 1996), defendants argue that because falling on a staircase is a risk inherent in firefighting, plaintiff's injury resulted from the performance of his duty, not from any negligence on the part of defendants in violating any statutes. Relying on Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872 (1987), defendants contend that § 205-a protects firefighters only when the premises harbor hazards additional to those normally faced by firefighters. Second, defendants urge that the statutory violations cited by plaintiff do not give rise to a claim under § 205-a ...


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