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Cusumano v. City of New York

October 14, 2010

NOCENZO CUSUMANO, ET AL., RESPONDENTS,
v.
CITY OF NEW YORK, APPELLANT.



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

This pinion is uncorrected and subject to revision before publication in the New York Reports.

On December 22, 1999, plaintiff Nocenzu Cusumano, a firefighter in the New York City Fire Department attending a first responders training session, fell down a flight of stairs that ran from the first floor to the basement of a building owned by defendant City of New York. Plaintiff commenced this action against the City pursuant to General Municipal Law § 205-a, asserting a statutory cause of action for firefighters who sustain a line of duty injury "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]). To recover under that section, however, a firefighter "must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties" (Williams v City of New York, 2 NY3d 352, 364 [2004] [discussing General Municipal Law § 205-e, the sister provision of section 205-a] [internal quotations and citations omitted]).

Plaintiff contended at the liability trial that he slipped on debris at the top of the stairs and, due to a poorly constructed handrail, he was unable to grasp the handrail to prevent his fall. He relied on three provisions of the Administrative Code of the City of New York as predicates for his section 205-a claim, namely, sections 27-127, 27-128 and 27-375 (f). The first two are general provisions that require "[a]ll buildings and all parts thereof . . . be maintained in a safe condition," that "[a]ll service equipment . . . devices and safeguards that are required in a building . . . be maintained in good working order" and that "[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities".*fn1 Section 27-375 (f), entitled "Interior stairs," mandates, among other things, that interior stair "[h]andrails shall provide a finger clearance of one and one-half inches".

Two experts testified for the plaintiff that the handrail violated section 27-375 (f) and was therefore unsafe. After the parties rested, the City argued at the charge conference that section 27-375 (f) was inapplicable because the stairs constituted "access stairs" pursuant to Administrative Code section 27-232, as opposed to "interior stairs" which must provide egress to the outside. Supreme Court held as a matter of law that the stairs constituted "interior stairs" and prohibited the City from arguing the inapplicability of section 27-375(f) during summation. Plaintiff's counsel, on the other hand, argued to the jury that the City violated section 27-375 (f)'s height and clearance requirements, and Supreme Court issued a jury charge relative to sections 27-127, 27-128 and 27-375 (f).

In response to separate interrogatories, the jury found that the City violated Administrative Code §§ 27-127 and 27-375 (f); the court did not submit an interrogatory relative to section 27-128. Following a separate damages trial, the City moved to set aside the verdict. As to the liability portion of the motion, the City reiterated its argument that section 27-375 (f) was inapplicable because the stairs at issue constituted "access stairs," not "interior stairs." It further argued that the jury's finding of liability under section 27-127 was unsustainable because the evidentiary basis for the jury's finding was the City's non-compliance with the inapplicable section 27-375 (f). Supreme Court denied the motion, holding that the City should have pleaded as an "affirmative defense" the inapplicability of section 27-375 (f).

The Appellate Division, with one justice dissenting, modified the jury's damages award to the extent of ordering plaintiff to stipulate to a reduction thereof or face a new trial on that issue (63 AD3d 5, 12 [2d Dept 2009]). It unanimously held, however, that section 27-375 (f) did not apply to the underlying facts because the stairs did not constitute "interior stairs" as defined by the Administrative Code, and that Supreme Court improperly shifted the burden to the City of demonstrating the inapplicability of section 27-375 (f)(id. at 8, 14). However, the majority and the dissent parted company as to whether plaintiff presented sufficient evidence independent of the section 27-375 (f) violation to establish that the City violated sections 27-127 and 27-128, with the majority concluding that he had (see id. at 9-10), and the dissent arguing that those sections did not provide a sufficient predicate for liability under General Municipal Law § 205-a (see id. at 17).

The Appellate Division properly concluded that section 27-325(f) is inapplicable. That code provision applies to "interior stairs," which are defined as "stair[s] within a building, that serve[ ] as a required exit" (Administrative Code § 27-232). By all accounts, the stairs from where plaintiff fell did not serve as an "exit" as defined by the Administrative Code (see id.), but rather as a means of walking from the first floor to the basement. Therefore, Supreme Court erred in denying the City's motion to dismiss the section 205-a claim to the extent it was premised on the City's alleged violation of section 27-375 (f).

The effects of this error are not limited to the claim based on that provision, however, because it cannot be assumed that the jury viewed plaintiffs' experts' handrail testimony in a vacuum. Both experts testified that the handrail clearance requirements were governed by section 27-375 (f) and that the City violated those requirements. Further conflating the distinction among the Administrative Code sections was testimony that the City violated sections 27-127 and 27-128 because it violated 27-375(f). Supreme Court's erroneous submission of section 27-375 (f) to the jury, coupled with the expert testimony, renders it impossible to discern the basis of the jury's verdict.

We decline the City's invitation to address the issue of whether sections 27-127 and 27-128 form a sufficient independent predicate to support a General Municipal Law § 205-a claim. There is no record evidence that the City contested plaintiff's argument that those sections provided an independent predicate, as the record indicates that the City objected to the applicability of those sections only to the extent that they were interwoven with section 27-375 (f).

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered. The certified question should not be answered upon the ground that it is unnecessary.

LIPPMAN, Chief Judge (concurring).

I agree with the majority that the trial was tainted by testimony regarding New York City Administrative Code § 27-375, and therefore, a new trial is necessary to determine whether plaintiff is entitled to recovery under General Municipal Law § 205-a (Section 205-a). Nonetheless, I disagree with the assertion that defendant-appellant City of New York did not preserve the argument that New York City Administrative Code § 27-127 (Section 27-127) is an insufficient independent predicate for Section 205-a liability. The argument was made at the charge conference of the liability trial and again on the motion to set aside the verdict. Accordingly, I believe we are obliged to reach this question on the merits.

For a claim brought under General Municipal Law § 205-a to survive, a plaintiff must demonstrate a line-of-duty injury, which "occurs directly or indirectly 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 federal, state, county, village, town or city governments" (General Municipal Law § 205-a [emphasis added]). Section 205-a liability therefore does not stand alone but must be predicated on a violation of a separate legal requirement.

The language "directly or indirectly" in Section 205-a has been accorded broad application by the courts, "in light of the clear legislative intent to offer firefighters greater protections" (Giuffrida v Citibank Corp., 100 NY2d 72, 80 [2003]). Still, we have established some clear limits on the possible predicates for Section ...


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