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Cusumano v. City of New York

April 7, 2009

NOCENZU CUSUMANO, RESPONDENT, ET AL., PLAINTIFF,
v.
CITY OF NEW YORK, APPELLANT.



APPEAL by the defendant, in an action pursuant to General Municipal Law § 205-a to recover damages for personal injuries, etc., as limited by its brief, from so much of a judgment of the Supreme Court (Patricia P. Satterfield, J.), entered in Queens County on November 30, 2006, as, upon a jury verdict on the issue of liability finding it 100% at fault in the happening of the accident, and upon a jury verdict on the issue of damages finding that the plaintiff Nocenzu Cusumano sustained damages in the sums of $1,200,000 for past pain and suffering and $500,000 for future pain and suffering, and upon an order of the same court entered August 31, 2006, denying its motion pursuant to CPLR 4404(a) to set aside the verdict as to liability for the plaintiffs' failure to establish a prima facie case and for judgment as a matter of law or, in the alternative, to set aside the verdict as to liability as contrary to the weight of the evidence and for a new trial, and to set aside the verdict as to damages as excessive, is in favor of the plaintiff Nocenzu Cusumano and against it in the principal sum of $1,700,000.

The opinion of the court was delivered by: Dickerson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON and ARIEL E. BELEN, JJ.

(Index No. 4207/01)

OPINION & ORDER

The Accident

The plaintiff Nocenzu Cusumano (hereinafter the plaintiff) was a firefighter employed by the New York City Fire Department. He alleged that he was injured on December 22, 1999, when he fell down a flight of stairs while attending Certified First Responder Defibrillator training in a building owned by the defendant City of New York.

The staircase where the plaintiff fell provided access between the first floor and the basement of the building. The plaintiff allegedly slipped on debris located at the top of the stairwell and could not grasp the handrail to prevent himself from falling. He fell down the full flight of stairs, landing on the concrete floor of the basement.

The Plaintiff's Injuries

The plaintiff suffered multiple injuries. These included a fracture dislocation of the metacarpal-carpal bones in his left, nondominant, wrist with permanent restriction of motion, requiring surgery involving the placement of four stainless steel pins in his hand; degenerative joint disease at the AC joint in his left shoulder with impingement, requiring two surgeries involving the removal of bone and scar tissue; and re-injury to his right knee resulting in a torn medial meniscus, requiring arthroscopic surgery.

General Municipal Law § 205-a

The plaintiff commenced this action pursuant to General Municipal Law § 205-a to recover damages for personal injuries and his wife asserted a derivative cause of action. "General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose neglect or omission to comply with governmental requirements results directly or indirectly in the firefighter's injury" (Terranova v New York City Tr. Auth., 49 AD3d 10, 17; see Giuffrida v Citibank Corp., 100 NY2d 72, 79; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441). In order to establish a prima facie case under General Municipal Law § 205-a, a plaintiff must demonstrate a violation by the defendant of a statute or ordinance which directly or indirectly has a reasonable connection to the firefighter's described injury (see generally Doherty v Sparacio, 35 AD3d 530, 531; Kenavan v City of New York, 267 AD2d 353, 355).

Here, the plaintiffs predicate liability on alleged violations by the defendant of Administrative Code of the City of New York § 27-375(f) (hereinafter Administrative Code), which provides requirements for handrails located in interior stairs. They also predicate liability on alleged violations of Administrative Code §§ 27-127 and 27-128. These sections, in essence, provide that the owner of a building must maintain it in a safe condition, and that the owner shall be responsible ...


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